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REV: 11-30-21 RL
<br />Software, (ii) a solution to mitigate the infringement, or (iii) a product to replace the infringing
<br />product that provides the functionality and complies with the specifications contained in the
<br />Contract Documents. The City shall not incur any additional costs related to the aforementioned
<br />remedies.
<br />19. Termination
<br />a. Termination for Default. Subject to the right to cure contained in Section 19.b., the City
<br />may terminate this Agreement in whole or in part, at any time that the City determines that
<br />Provider is in material default of its obligations under the Contract Documents.
<br />Termination for default is effective on the date specified in the City’s written notice of
<br />default. Should Provider fail to cure a default, then in addition to any other remedies
<br />provided by law or the Contract Documents, Provider shall compensate the City’s actual
<br />costs to obtain substitute performance. A termination for default shall be deemed a
<br />termination for convenience if the termination for default is later found to be without
<br />justification.
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<br />b. Cure. Provider shall have a period of ten (10) days following a written notice of default to
<br />either cure such default or if such default cannot be cured within such period, to provide
<br />evidence satisfactory to City, in its sole discretion, that Provider is taking action to cure
<br />such default.
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<br />c. Termination for Convenience. This Contract may be terminated by the City, in whole or in
<br />part, upon ninety (90) days written notice to Provider, when the City determines this to be
<br />in its best interest. The termination for convenience is effective on the date specified in the
<br />City’s written notice. Termination for convenience may entitle Provider to payment for
<br />reasonable costs allocable to the Contract Documents for work or costs incurred by
<br />Provider up to the date of termination. Provider shall not be paid compensation as a result
<br />of a termination for convenience that exceeds the amount payable under the Schedule of
<br />Charges.
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<br />d. Use of Software Solution. If there is a termination for any reason, the City shall have the right
<br />to elect to (i) continue use of the Software for the remainder of the period in which City has
<br />paid the license or subscription fee to Provider; or (ii) discontinue use of such Software in
<br />exchange for a proportional refund of such license or subscription fee.
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<br />20. Indemnification. To the fullest extent permitted by law, Provider shall defend, indemnify and hold
<br />the City, its Board, members of the Board, employees, and authorized volunteers free and harmless
<br />from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury
<br />of any kind, in law or equity, to property or persons, including wrongful death, in any manner
<br />arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful
<br />misconduct of Provider, its officials, officers, employees, subcontractors, Providers or agents in
<br />connection with the performance of Provider’s services, the Project or this Agreement. In addition,
<br />Provider shall defend, with counsel of City’s choosing and, at Provider's own cost, expense and
<br />risk, any and all claims, suits, actions or other proceedings of every kind covered by this section
<br />that may be brought or instituted against City or its Board, members of the Board, employees, and
<br />authorized volunteers. Provider shall pay and satisfy any judgment, award or decree that may be
<br />rendered against City or its Board, members of the Board, employees, and authorized volunteers as
<br />part of any such claim, suit, action or other proceeding. Provider shall also reimburse City for the
<br />cost of any settlement paid by City or its Board, members of the Board, employees, or authorized
<br />volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall
<br />include payment for City's attorney's fees and costs, including expert witness fees. Provider shall
<br />reimburse City and its Board, members of the Board, employees, and/or authorized volunteers, for
<br />ATTY/AGR.2021.312/E&M Electric and Machinery, Inc. (AVEVA Wonderware Flex Subscription) (Page 6 of 51)
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