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MEM <br /> SOFTWARE AS A SERVICE SUBSCRIPTION <br /> :1: : <br /> FRACTA <br /> EVEN IF THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE DEEMED BY AN ARBITRATOR OR <br /> COURT TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.THE PARTIES ACKNOWLEDGE THAT THE <br /> TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK IN THIS AGREEMENT AND THAT THE <br /> PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. <br /> This Section does not limit either party's liability for bodily injury, gross negligence or willful <br /> misconduct. <br /> 12. DISPUTE RESOLUTION <br /> 12.1 Negotiation.The Parties will make good faith efforts to resolve disputes through informal <br /> discussions between the appropriate representatives of the parties. Formal negotiation <br /> may be initiated by either party by sending written Notice of the description of the dispute <br /> to the other party. Within twenty(20) business days of the Notice, principals of both <br /> parties,who have the authority to settle the dispute,will meet to discuss resolution of the <br /> dispute. <br /> 12.2 Arbitration. If a dispute arising out of this Agreement cannot be resolved through formal <br /> negotiation,the dispute must be arbitrated according to the Commercial Arbitration Rules <br /> of the American Arbitration Association.The dispute shall be determined in accordance <br /> with the Agreement and the substantive laws of the State of California. It shall take place <br /> in San Mateo County, California, and the result shall be binding on both parties.The cost <br /> of the arbitration shall be borne equally by both parties.The parties hereby submit to the <br /> jurisdiction of the appropriate court for the purpose of confirming any agreed settlement <br /> arrived at during arbitration. <br /> 13. INDEMNIFICATION <br /> 13.1 Indemnification of Customer. Fracta agrees to defend Customer and its directors, officers <br /> and employees from and against any and all claims, demands,suits or proceedings made <br /> or brought against Customer by third parties, and agrees to pay or reimburse Customer <br /> for any and all damages,costs and expenses payable by Customer to such third party to <br /> the extent that they are awarded in a final judgment or agreed to in settlement,as a result <br /> of a claim against Customer, based upon or arising out of: (i) any dishonest,fraudulent, <br /> criminal, or negligent acts committed by Fracta,or any agent or employee of Fracta, <br /> acting pursuant to, or in connection with,the Agreement;or(ii) a claim that the use of the <br /> Software as a Service or the System as permitted hereunder infringes the intellectual <br /> property rights of a third party.As a condition of Fracta's indemnification obligation, <br /> Customer must (i) promptly give written notice of the claim to Fracta, (ii)give Fracta sole <br /> control of the defense and settlement of the claim (provided that Fracta may not settle or <br /> defend any claim unless it unconditionally releases Customer of all liability), (iii) provide <br /> to Fracta all reasonable and available information and assistance.and (iv) not have <br /> compromise or settled such claim. <br /> 13.2 Indemnification of Fracta.Customer agrees to defend Fracta and its directors, officers and <br /> employees from and against any and all claims, demands, suits or proceedings made or <br /> brought against Fracta by third parties, and agrees to pay or reimburse Fracta for any and <br /> all damages, costs and expenses payable by Fracta to such third party to the extent that <br /> they are awarded in a final judgment or agreed to in settlement,as a result of a claim <br /> Fracta Confidential Page 8 of 12 December 4,2019 <br />