Agmt21 E & M Electric and Machinery, Inc.

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REV: 11-30-21 RL any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. 21. Insurance; Limitation on Liability; Exceptions. a. Provider will comply with the “Insurance Requirements” of City, which are attached hereto as Exhibit “G” and included as a part of this Agreement. b. Neither City, nor Provider, shall be liable to the other for any indirect or consequential damages, including lost profits, as a result of any breach of the Contract Documents. c. Notwithstanding the foregoing, no limitation on liability contained in the Contract Documents shall apply to any third party claim for personal injury or wrongful death arising from the negligent acts or willful misconduct of either party, its agents or assigns. Furthermore, no limitation on liability applicable to Provider shall apply to any third party claim that the Software infringes upon the intellectual property rights of another party, nor to the obligation of Provider to deliver the Software and Services in accordance with the Scope of Work and Provider’s warranty obligations. 22. Laws, Venue, and Attorneys’ Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, including arbitration pursuant to Section 27, the action shall be brought in a state or federal court situated in the County of San Mateo, State of California. 23. Documents. Provider shall deliver to City no less than one (1) full set of documentation, manuals and training materials for the Software and City shall have the right to copy such documents and materials for its own internal use of the Software. 24. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered in person or sent via commercial overnight delivery, addressed to each party at the address set forth on the signature page or such other address for which a party has given notice. Notice will be effective upon receipt. 25. Severability. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 26. Counterparts. This Agreement and any exhibits, amendments or renewals hereto may be executed in a number of counterparts, and each counterpart signature, when taken with the other counterpart signatures, is treated as if executed upon one original of this Agreement or any amendment or renewal. A signature by any party to this Agreement provided by facsimile or electronic mail is binding upon that party as if it were the original. 27. Arbitration. Any dispute arising under this Agreement, including, without limitation, all disputes relating in any manner to the performance or enforcement of this Agreement shall be resolved by binding arbitration in the County of San Mateo, California, pursuant to the rules of Judicial Arbitration and Mediation Services (“JAMS”), as amended or as augmented in this Agreement (the “Rules”). Arbitration shall be initiated as provided by the Rules, although the written notice to the other party initiating arbitration shall also include a description of the claim(s) asserted and the facts upon which the claim(s) are based. Arbitration shall be final and binding upon the parties and shall be the exclusive remedy for all claims subject hereto, including any award of attorney’s fees and costs. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. All disputes shall be decided by a single arbitrator. The arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of the effective date of the notice initiating the arbitration. If the parties cannot agree on an arbitrator, then the ATTY/AGR.2021.312/E&M Electric and Machinery, Inc. (AVEVA Wonderware Flex Subscription) (Page 7 of 51)