|
consolidation. However, the following will not
<br /> be considered "assignments" for purposes of However, nofinrithstanding the foregoing, in
<br /> this Agreement: SunGard Public Sector's accordance with California Civil Code Section 1668,
<br /> assignment of this Agreement or of any nothing in this Agreement shall be construed to
<br /> SunGard Public Sector rights under this exempt the Customer from its own fraud, willful injury
<br /> Agreement to an entity that acquires all or to the person or property of another, or violation of law.
<br /> substantially all of SunGard Public Sector's
<br /> capital stock or assets. Furthermore, notwithstanding the forgoing, to the
<br /> extent this Agreement is a construction contract as
<br /> 13. No Waiver. A party's failure to enforce defined by California Civil Code section 2783, as may
<br /> its rights with respect to any single or be amended from time to time, such duties of
<br /> continuing breach of this Agreement will not SunGard Public Sector to indemnify shall not apply
<br /> act as a waiver of the right of that party to later when to do so would be prohibited by California Civil
<br /> enforce any such rights or to enforce any Code Section 2782.
<br /> other or any subsequent breach.
<br /> Nothing herein contained.in this Agreement shall be
<br /> 14. Choice of Law: Severabilitv. This construed to require SunGard Public Sector to
<br /> Agreement will be governed by and construed indemnify Indemnitees against any responsibility or
<br /> under the laws of the State of California, liability in contravention of California Civil Code
<br /> without reference to the choice of laws Section 2782.8.
<br /> provisions thereof. If any provision of this
<br /> Agreement is illegal or unenforceable, it will be The Parties expressly agree that any reasonable
<br /> deemed stricken from the Agreement and the payment, attorney's fee, cost or expense Customer
<br /> remaining provisions of the Agreement will incurs or makes to or on behalf of an injured employee
<br /> remain in full force and effect. under the Customer's self-administered workers'
<br /> compensation is included as a Liability for the
<br /> 15. INDEMNIFICATION SunGard Public purposes of this section.
<br /> Sector shall, to the fullest extent allowed by
<br /> law, with respect to the perFormance of this Further, without restricting the generality of the
<br /> Agreement, defend with counsel acceptable to foregoing, SunGard Public Sector agrees to, at its
<br /> Customer, indemnify, and hold Customer, its expense, defe�d and/or settle any claim made by a
<br /> officers, employees, agents, and volunteers third party against Customer alleging that the SunGard
<br /> ("Indemnitees"), harmless from and against Public Sector-owned software technology underlying
<br /> any and all claims of personal injury or the Platform irifringes such third party's United States
<br /> tangible property damage that arise out of, patent, copyright, trademark or trade secret (an "IP
<br /> pertain to, or relate to the negligence, Claim"), and pay those amounts finally awarded by a
<br /> recklessness, or willful misconduct of court of competent jurisdiction against City (including
<br /> SunGard Public Sector, its subcontractor, or damages, interest, losses, costs and expenses
<br /> anyone directly or indirectly employed by any including attorneys' fees) or payable pursuant to a
<br /> of them or anyone for whose acts any of them settlement agreed to by SunGard Public Sector with
<br /> may be liable ("Claims"). SunGard Public respect to such IP Claim, provided that Customer
<br /> Sector will bear all losses, costs, damages, provides SunGard Public Sector with (i) prompt written
<br /> expense and liability of every kind, nature and notice of the IP Claim, except that any failure to
<br /> description, including attorneys' fees, experts provide this notice promptly only relieves SunGard
<br /> fees, court costs and disbursements, that Public Sector of its responsibility pursuant to this
<br /> arise out of, pertain to, or relate to such Section to the extent its defense is materially
<br /> Claims, whether directly or indirectly prejudiced by the delay, (ii) sole control over the
<br /> ("Liabilit�'). Such obligations to defend, hold defense and settlement of the IP Claim, provided that
<br /> harmless and indemnify the Customer shall SunGard Public Sector will not admit fault by
<br /> not apply to the extent that such Liability is Customer or agree to any settlement that would
<br /> caused by the sole negligence or willful impose obligations or restrictions on Customer (other
<br /> misconduct of the Customer. than payment of sums which would be paid by
<br /> SunGard Public Sector under this Section) without
<br /> To the extent required by law, with respect Customer's prior written consent, not to be
<br /> to third party claims against SunGard Public unreasonably withheld, delayed or conditioned, and
<br /> Sector, SunGard Public Sector waives any Customer ; and (iii) all assistance, information and
<br /> and all rights of any type of express or implied authority reasonably requested by SunGard Public
<br /> indemnity against the Indemnitees. Sector for the defense and/or settlement of the IP
<br /> Page 6 of 10
<br /> REV:05-02-16 RL
<br /> ATTY/AGR/2016.089/CITY OF REDWOOD CITY,CA SPS MAINTENANCE 071015
<br />
|