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<br />Services, as provided by Govstream and used in accordance with
<br />this Agreement, infringe any United States patent, copyright,
<br />trademark, or trade secret; (b) Govstream’s material breach of this
<br />Agreement; (c) Govstream’s gross negligence or willful
<br />misconduct in connection with the provision of the Services; (d)
<br />Govstream’s failure to comply with applicable law directly in
<br />connection with its performance under this Agreement; or (e) any
<br />unauthorized access to or disclosure of City Data caused by
<br />Govstream’s failure to maintain the security standards expressly
<br />required by this Agreement. The foregoing obligations are
<br />conditioned on: (i) City providing Govstream with prompt written
<br />notice of any claim; (ii) Govstream being given the opportunity to
<br />assume sole control over defense and settlement, subject to City’s
<br />reasonable approval of any settlement that imposes obligations on
<br />City or contains an admission of wrongdoing by City; and (iii)
<br />City providing Govstream with reasonable cooperation in
<br />connection with the defense. Govstream’s indemnification
<br />obligations under this Section are subject to the limitation of
<br />liability set forth in Section 9, except with respect to clauses (c)
<br />and (e) above.
<br />
<br />9. LIMITATION OF LIABILITY
<br />
<br />9.1 EXCEPT FOR: (A) BREACHES OF
<br />CONFIDENTIALITY SET FORTH IN SECTION 3 OR GROSS
<br />NEGLIGENCE, (B) GOVSTREAM’S GROSS NEGLIGENCE
<br />OR WILLFUL MISCONDUCT; (C) GOVSTREAM’S
<br />INTENTIONAL UNAUTHORIZED ACCESS TO OR
<br />DISCLOSURE OF CITY DATA IN VIOLATION OF
<br />APPLICABLE DATA PRIVACY LAWS; OR (D)
<br />GOVSTREAM'S INTELLECTUAL PROPERTY
<br />INDEMNIFICATION OBLIGATIONS UNDER SECTION
<br />8.2(A), IN NO OTHER EVENT WILL ANY PARTY OR ITS
<br />AFFILIATES BE LIABLE TO THE OTHER PARTY UNDER
<br />OR IN CONNECTION WITH THIS AGREEMENT OR ITS
<br />SUBJECT MATTER, REGARDLESS OF THE FORM OF
<br />CLAIM, WHETHER IN TORT (INCLUDING NEGLIGENCE),
<br />BREACH OF CONTRACT, STRICT LIABILITY OR
<br />OTHERWISE, FOR ANY INDIRECT, SPECIAL, PUNITIVE,
<br />EXEMPLARY, SPECULATIVE OR CONSEQUENTIAL
<br />DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY
<br />LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION,
<br />AND LOSS OF INCOME OR PROFITS. THIS SECTION
<br />SHALL APPLY IRRESPECTIVE OF WHETHER IT HAD AN
<br />ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH
<br />DAMAGES OR SUCH DAMAGES OR LOSSES WERE
<br />OTHERWISE FORESEEABLE AND REGARDLESS OF
<br />WHETHER ANY AGREED-UPON OR OTHER REMEDY
<br />FAILS ITS ESSENTIAL PURPOSE.
<br />
<br />10. INSURANCE
<br />
<br />10.1 At all times during the Term, at its sole cost and expense,
<br />Govstream shall procure and maintain insurance coverage in the
<br />types and amounts set forth in Exhibit F (“Insurance
<br />Requirements”) to this Agreement. Upon City’s written request,
<br />Govstream shall promptly provide City with certificates of
<br />insurance to evidence Govstream’s continued compliance with
<br />Exhibit F.
<br />
<br />11. DISPUTE RESOLUTION
<br />
<br />11.1 Binding Arbitration. In the event of any dispute between
<br />the parties regarding the subject matter of this Agreement, both
<br />parties agree to try for fourteen (14) days to resolve such dispute
<br />informally. If the parties cannot resolve the dispute informally,
<br />then the parties agree that any and all disputes, claims or
<br />controversies arising out of or relating to this Agreement shall be
<br />submitted for final and binding arbitration administered by the
<br />American Arbitration Association in accordance with its
<br />Commercial Arbitration Rules. The place of arbitra tion will
<br />initially be in Snohomish County, Washington, which may permit
<br />arbitration by the parties through virtual attendance. The language
<br />to be used in the arbitral proceedings will be English. Judgment
<br />upon the award rendered by the arbitrator(s) may be entered in any
<br />court having jurisdiction thereof. The arbitrator(s) shall award to
<br />the Prevailing Party, if any, as determined by the arbitrator(s), all
<br />of its costs and fees. “Costs and fees” mean all reasonable pre-
<br />award expenses of the arbitration, including the arbitrators’ fees,
<br />administrative fees, travel expenses, out-of-pocket expenses such
<br />as copying and telephone, court costs, witness fees, and reasonable
<br />attorneys’ fees. In rendering the award, the arbitrator(s) shall
<br />determine the rights and obligations of the Parties according to the
<br />substantive and procedural laws of the State of Washington.
<br />“Prevailing Party” shall be defined: (a) as a claimant that is
<br />awarded net fifty-one percent (51%) of its affirmative claim, after
<br />any offsets for claims or counterclaims by the other party, and (b)
<br />as a defendant/respondent against whom an award of less than fifty
<br />percent (50%) of a claimant’s claim is granted.
<br />
<br />11.2 Injunctive Relief. The binding arbitration provisions
<br />above does not prevent a party from seeking injunctive or other
<br />equitable relief in a judicial forum in accordance this Section. The
<br />parties agree that irreparable damage would occur and that they
<br />would not have adequate remedy at law in the event any of the
<br />confidentiality provisions of this Agreement were not performed
<br />in accordance with their specific terms or were otherwise
<br />breached. It is accordingly agreed that the parties will be entitled
<br />to seek equitable relief, including injunction, to prevent breaches
<br />or threatened breaches of such confidentiality provisions (without
<br />the requirement of posting a bond or otherwise securing any
<br />undertaking as to damages and without the necessity of proving
<br />actual damages) and to enforce specifically the terms and
<br />provisions of this Section, this being in addition to any other
<br />remedy to which they are entitled at law. The party seeking
<br />injunctive relief shall be indemnified for all costs and fees in such
<br />enforcement, including courts costs and reasonable attorneys’
<br />fees.
<br />11.3 Governing Law. This Agreement will be governed by
<br />and construed in accordance with the laws of the State of
<br />Washington, excluding its body of law controlling conflict of
<br />laws. To the extent binding arbitration is not applicable, any legal
<br />action or proceeding arising under this Agreement will be brought
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