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Page 7 of 11 WA City of Everett – LC-10003706 2023-08-16 9.10_LD
<br />6. LIMITATION OF LIABILITY
<br />a. Limitation of Liability. No Covered Party shall be liable for any loss, injury, claim, liability, or damage of any kind resulting
<br />in any way from, as applicable, (a) any errors in or omissions from the Services or the Content, (b) the unavailability or
<br />interruption of the Services or any features thereof or of the Content, (c) your or any other party’s use of the Services or the
<br />Content, (d) the loss or corruption of any data or equipment in connection with the Services or the Content, (e) the content,
<br />accuracy, or completeness of the Content, all regardless of any assistance received in the use of the Services from a Covered
<br />Party, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved
<br />from the Internet even if retrieved or linked to from within the Services.
<br />b. Consequential Loss Exclusion. To the fullest extent permissible by applicable law, neither you nor the Covered Parties will
<br />be liable under any cause of action of any kind arising out of or related to the Agreement (including under theories involving
<br />tort, contact, negligence, strict liability or breach of warranty) for any special, indirect, incidental, or consequential damages
<br />of any kind whatsoever (including, without limitation, lost profits and attorneys' fees) even if a party has been advised of the
<br />possibility of such damages. The foregoing limitation of liability shall not apply to your (and your Authorized Users' or end-
<br />users (or both)) infringement of any intellectual property rights or misappropriation of proprietary data (including Content) or
<br />confidential information belonging to EagleView or any of its third party suppliers.
<br />c. Liability Cap. To the fullest extent permissible by applicable law, under no circumstances will the aggregate liability of the
<br />Covered Parties in connection with any claim arising out of or relating to the Services or the Content or the Agreement exceed
<br />the lesser of (i) your actual direct damages, or (ii) the amount you paid for the impacted Services or Content in the twelve (12)
<br />month period immediately preceding the date the claim arose.
<br />d. Defend and Hold Harmless. If there is a breach of the warranties in Section 5(a) above, then EagleView, at its option and
<br />expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or
<br />description based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to
<br />your use or, to the extent applicable, your Authorized Users’ use, of the Services or the Content, excluding any Services or
<br />Content supplied by a third party, asserted against you by any third party provided: (i) all use of the applicable Services and
<br />the applicable Content was in accordance with the Agreement; (ii) the claim, cause of action or infringement was not caused
<br />by you modifying or combining the applicable Services or the applicable Content with or into other products, applications,
<br />images or data not approved by EagleView in writing; (iii) you give EagleView prompt notice of such claim; and (iv) you
<br />give EagleView the right to control and direct the investigation, defense and settlement of such claim. You, at EagleView’s
<br />expense, shall reasonably cooperate with EagleView in connection with the foregoing.
<br />e. Right to Mitigate. In addition to Section 6(d), if any of the Services, the operation thereof or any of the Content become, or
<br />in the opinion of EagleView are likely to become, the subject of a claim of infringement, EagleView may, at its option and
<br />expense, either: (i) procure for you the right to continue using the applicable Services or the applicable Content, (ii) replace
<br />or modify the applicable Services or the applicable Content so that they become non-infringing; or (iii) terminate the
<br />Agreement (including the applicable licenses granted to you) on notice to you and grant you a pro-rata refund or credit
<br />(whichever is applicable) for any pre-paid Fees.
<br />f. Sole / Exclusive Remedy. Your right to monetary damages in the amount of the liability cap, as specified in Section 6(c)
<br />above, shall be in lieu of all other remedies which you may have against any Covered Party. The provisions of Sections 6(d)
<br />and (e) of the Agreement shall constitute your sole and exclusive remedy for the respective matters specified therein.
<br />g. Notification of Claims. You shall (a) notify EagleView in writing of any claims or proceedings involving any of the Content
<br />and/or the Services within ten (10) days after you learn of the claim or proceeding, and (b) report promptly to EagleView all
<br />claimed or suspected defects in the Content and/or the Services.
<br />7. MISCELLANEOUS
<br />a. Restricted Rights. The Content and Services acquired with United States Government funds or intended for use within or for
<br />any United States federal agency are provided with “Restricted Rights” as defined in DFARS 252.227-7013, Rights in
<br />Technical Data and Computer Software and FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable.
<br />b. Trade Restrictions. The parties acknowledge that certain information, software technology, accompanying documentation
<br />and technical information may be subject to United States export control laws. You will not directly or indirectly export or re-
<br />export the Content or Services in violation of the Export Administration Regulations of the U.S. Department of Commerce.
<br />c. Patriot Act. You are aware and understand that any user data collected or stored by the Online Services or the WVO Services
<br />may be accessed by US law enforcement agencies under the US PATRIOT Act. You hereby release, and agree to hold
<br />EagleView harmless from, all claims against EagleView with respect to such access.
<br />d. Non-Compete. You may not use the Services or the Content (or both) to compete with any businesses of EagleView.
<br />e. FCR. You may not use information included in the Services or the Content to determine an individual consumer's eligibility
<br />for (a) credit or insurance for personal, family, or household purposes; (b) employment; or (c) a government license or benefit.
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