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INTEGRITY EXCEED THE REPLACEMENT COST OF THE
<br />MEDIA ON WINCH THE DATA WAS STORED.
<br />10. Risks lahl ant to !acme!. Client acknowledges that: (a) the Internet is
<br />a worldwide network of computers, (b) communication on the Internet
<br />may not be secure, (c) the Internet is beyond the control of Bryce , and
<br />A Brycer does not Own, operate w manage the Internet. Client also
<br />acknowledges that there are inherent risks associated with using the
<br />Solution, including but not limited to the risk of breach of security, the
<br />risk of exposure to computer viruses and the risk of interception,
<br />distortion, or loss of communications. Client assumes these risks
<br />knowingly and voluntarily releases Brycer from all liability from alt
<br />sucb risks. Not in ]imitation of the foregoing. Client hereby assumes
<br />the risk, and Bryccr shall have no responsibility or liability of any kind
<br />hereunder, for. (1) errors in the Solution resulting from misuse,
<br />negligence, revision, modification, or improper use of all or any part of
<br />the Solution by any entity other than Brycer or its authorized
<br />repremtatives; (2) any version of the Solution other than the then.
<br />current unmodified version provided to Client; (3) Client's failure to
<br />timely or correctly install any updates to the Client Access Software;
<br />(4) problems caused by connecting or failure to connect to the Internet;
<br />(5) failure to provide and maintain the technical and connectivity
<br />configurations for the use and operation of the Solution that meet
<br />Brycer's recommended requirements; (6) nonconformities resulting
<br />from or problems to or caused by non-Brycer products or services; or
<br />(7) data or data input, output, avxuracy, and suitability, which shall be
<br />deemed undcT Client's cxcluaivo control.
<br />lndcmni . Brycer will defend, indemnify and hold harmless Client
<br />and its officers, agents, employees, and volunteers, (the 'Indemnified
<br />Parties' from and against all clsstns, damages, losses :tad expeuscs
<br />including attorney fees (each a "Claim" j arising out of Brycer's
<br />performance under this Agreement, caused in whole or in part by the
<br />willful misconduct or any negligent act or omission of Brycer, any
<br />subcontractor, anyone directly or indirectly employed by any of them
<br />or anyone for whose acts any of them may be liable, except where
<br />caused by the sole negligence or willful misconduct of City. Without
<br />lirniuing the generality of the forgoing, Brycer shall du lfend the
<br />Indemnified Parties from and against any claim, suit, or action (an
<br />"Infringement Claim") by a third party that is based upon an allegation
<br />that any part of the Solution, infringes or otherwise violates the
<br />intellectual property (provided that with respect to patents it shall be
<br />limited to US patents) rights of such third party. Brycer shall also
<br />indemnify and hold harmless the Indemnified Parties from and against
<br />any final award of dawzges or settlement amounts for release of
<br />liability from any such Wringement Claim. In addition, if an
<br />Infringement Claim is made, or if Brycer has reason to believe such a
<br />claim may be made, Brycer may replace or modify the Solution to
<br />make it non -infringing, or procure a license for City tinder the rights
<br />allegedly infringed. If none of the options described in the preceding
<br />sentence is available to Brycer using commercially rcasonab le, efforts,
<br />then Brycer may terminate this Agraerne3t. Brycer shall have no
<br />liability under this subsection with respect to any use or other
<br />exploitation of the Solution not in compliance with this Agreement or
<br />applicable law. This subsection, states Brycer'a sole liability to, and
<br />City's exclusive remedy, under this Agreement with respect to
<br />infriogement or other violation of third parry intallectual property
<br />rights. Notwithstanding the foregoing, Brycer will have no obligation
<br />under this Section or otherwise with respect to any infringement claim
<br />based upon (i) any use of the Solution not in accordance with this
<br />Agreement or for purposes not intended by Brycer, (ii) any use of the
<br />Solution in combination with other products, equipment, software, or
<br />data not supplied or specified by Brycer, (iii) any use of any release of
<br />the Solation other than the most current release made available to
<br />Client, or (iv) any modification of the Solution by any person other
<br />than Brycer or its authorized agents or subcontractors. Brycer shall not
<br />settle any Claim or Infringement Claim without the prior written
<br />approval of CIient, which approval may be unreasonably withheld or
<br />delayed.
<br />REV: 02-12-21 PR
<br />12. insurance_ See Exhibit C, attached herein and incorporated by
<br />reference.
<br />13. $reach. Brycer shall have the right to terminate or suspend this
<br />Agreement, and all of Client's rights hereunder, within five (5) days of
<br />Client's breach of any provision of this Agreement and delivering
<br />written notice to Client detailing such breach. If CIient cures such
<br />breach within five (5) days of receiving written code* thereof, Brycer
<br />shall mature the Solution and Client sball pay any fees or costs iucurred
<br />by Brycer in connection with the restoration of the Solution. Client
<br />shall have the right to terminate or suspend this Agreement, and all of
<br />Bryceea rights hereunder, within five (5) days of Brycer's breach of
<br />anyprovision ofthis Agreement and deliveriagwritten notice to Brycer
<br />d;;Wling such breach. If Brycer cures such breach within five (5) days
<br />of receiving written notice thereof, Brycer shall pay any fees or costs
<br />incurred by Brycer in connection with Brycer's.
<br />14. illegal Payments. Client acknowledges and agrees that it has not
<br />received or been offered any illegal or improper bribe, kickback,
<br />payment, gift or anything of value from any employee or agent of
<br />Brycer in connection with the Agreement.
<br />15. Beneficiaries. There are no third party beneficiaries to the Agrermcnt.
<br />16. Force MaicuM. Neither patty shall be responsible for any failure to
<br />perform duo to unforeseen, non-concm(=ial circumstances beyond its
<br />reasonable control, including but not limited to pandemics, acts of God,
<br />war, riot, embargoes, acts of civil or military authorities, fire, floods,
<br />earthquakes, blackouts, accidents, or strikes. In the event of any such
<br />delay, any applicable period of time for action by said party may be
<br />deferred for a period of time equal to the time of such delay, except
<br />that a party's thilure to make any payment when due hereunder shall
<br />not be so excused.
<br />17. N tom. All notices required in the Agreement shall be effective; (a)
<br />if given personally, upon receipt; (b) ifgivenby facsimile or electronic
<br />mail, when such notice is transmitted and confirmation of receipt
<br />obtained; (c) if mailed by certified mail, postage prepaid, to the last
<br />known address of each parry, three business days after mailing; or (d)
<br />if delivered to a nationally recognized overnight courier service, one
<br />business day after delivery.
<br />18. URLSWC1ION AND VE1rU - THE AGREEMENT SHALL BE
<br />GOVERNED BY, CONSTRUED AND RgTF.RPRETW IN
<br />ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE
<br />LAWS OF THE STATE OF CALIFORNIA WITHOUT
<br />REFERENCE TO ITS CHOICE -OF -LAW PRINCIPLES. THE
<br />PARTIES IRREVOCABLY AGREE THAT ALL ACTIONS OR
<br />PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING
<br />OUT OF OR FROM OR RELATED TO THE AGREEMENT SHALL
<br />BE LITIGATED ONLY IN COURTS LOCATED WITHIN THE
<br />STATE IN WHICH CLIENT EXISTS. THE PARTIES HEREBY
<br />CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION
<br />OF THE FEDERAL OR STATE COURT WITH COMPETENT
<br />JURISDICTION OVER OR LOCATED IN SAN MATEO COUNTY,
<br />CALIFORNIA, AND THE PARTIES HEREBY SUBMIT TO THE
<br />PERSONAL JURISDICTION AND VENUE THEREIN, THE
<br />PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
<br />TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR
<br />PROCEEDING ARISING OUT OF OR RELATING TO THIS
<br />AGREEMENT.
<br />19. A ltomo s' Fres. The prevailing party in any proceeding in connection
<br />with the Agreement shall be entitled to recover from the non -prevailing
<br />party all costs and expenses, including without limitation, reasonable
<br />attorneys' and paralegals' fees and costs incurred by such party in
<br />connection with any such proceeding.
<br />20. Erairc Agreement. The Agrectucot sets out the entire agreement
<br />between the parties relative to the subject matter hereof and supersedes
<br />
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