2008/12/22 Council Agenda Packet

Agreement.The Paying Party is liable for any taxes related specifically to Services purchased under this Agreement or shall present to Iron Mountain an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice.The Depositor and the Beneficiaries agree that if this Agreement terminates during the term for any reason,other than for the fault of Iron Mountain,all prepaid fees shall be non-refundable. Any Service Fees not collected by Iron Mountain when due shall bear interest until paid at a rate of one percent(1%)per month(12%per annum)or the maximum rate permitted by law,whichever is less. Notwithstanding,the non-performance of any obligations of the Depositor to deliver Deposit Material under the License Agreement or this Agreement,Iron Mountain is entitled to be paid all Service Fees that accrue during the Term of this Agreement. 6. Term and Termination. (a) The"Term"of this Agreement is for a period of one(1)year from the Effective Date("Initial Term")and will automatically renew for additional one(1)year terms("Renewal Term")and continue in full force and effect until one of the following events occur:(i)the Depositor and the Beneficiaries provide Iron Mountain with sixty(60)days'prior written joint notice of their intent to terminate this Agreement;(ii)the Beneficiaries provide Iron Mountain and the Depositor with sixty(60)days'prior written notice of their intent to terminate this Agreement;(iii)the Agreement terminates under another provision of this Agreement;or(iv)any time after the Initial Term,Iron Mountain provides a sixty(60)days'prior written notice to the Depositor and the Beneficiaries of Iron Mountain's intent to terminate this Agreement.If the Effective Date is not specified above,then the last date noted on the signature blocks of this Agreement shall be the Effective Date. (b) Unless the express terms of this Agreement provide otherwise,upon termination of this Agreement,Iron Mountain shall return the Deposit Material to the Depositor.If reasonable attempts to return the Deposit Material to the Depositor are unsuccessful,Iron Mountain shall destroy the Deposit Material. (c) In the event of the nonpayment of undisputed Service Fees owed to Iron Mountain,Iron Mountain shall provide all Parties to this Agreement with written notice of Iron Mountain's intent to terminate this Agreement. Any Party to this Agreement shall have the right to make the payment to Iron Mountain to cure the default. If the past due payment is not received in full by Iron Mountain within thirty(30)calendar days of the date of such written notice,then Iron Mountain shall have the right to terminate this Agreement at any time thereafter by sending written notice to all Parties.Iron Mountain shall have no obligation to perform the Services under this Agreement(except those obligations that survive termination of this Agreement)so long as any undisputed Service Fees due Iron Mountain under this Agreement remain unpaid. 7. General Indemnity. Subject to Section 10 and 11,each Party shall defend,indemnify and hold harmless the others,their corporate affiliates and subsidiaries and their respective officers,directors,employees,consultants and agents and their respective successors and assigns from and against any and all claims,losses,liabilities,damages,and expenses(including,without limitation, reasonable attorneys' fees),arising under this Agreement from the negligent or intentional acts or omissions of the indemnifying Party or its subcontractors,or the officers,directors,employees,agents,successors and assigns of any of them. 8. Warranties. (a) IRON MOUNTAIN WARRANTS ANY AND ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE MANNER. EXCEPT AS SPECIFIED IN THIS SECTION,ALL EXPRESS OR IMPLIED CONDITIONS,REPRESENTATIONS,AND WARRANTIES INCLUDING,WITHOUT LIMITATION,ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,SATISFACTORY QUALITY,OR ARISING FROM A COURSE OF DEALING,USAGE,OR TRADE PRACTICE,ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. AN AGGRIEVED PARTY MUST NOTIFY IRON MOUNTAIN PROMPTLY OF ANY CLAIMED BREACH OF ANY WARRANTIES AND SUCH PARTY'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE. (b) The Depositor warrants that all of the Depositor information provided hereunder is accurate and reliable and undertakes to promptly correct and update the Depositor information during the Term of this Agreement. (c) Each Beneficiary warrants that all the information provided by that Beneficiary hereunder is accurate and reliable and undertakes to promptly correct and update such Beneficiary information during the Term of this Agreement. (d) Ownership Warranty.The Depositor warrants that it is the owner or legal custodian of the Deposit Material and has full authority to store the Deposit Material and direct their disposition in accordance with the terms of this Agreement. The Depositor shall reimburse Iron Mountain for any expenses reasonably incurred by Iron Mountain(including reasonable legal fees)by reason of Iron Mountain's compliance with the instructions of the Depositor in the event of a dispute concerning the ownership,custody or disposition of Deposit Material stored by the Depositor with Iron Mountain. Updated December 2008 Page 3 of 33 1