2008/12/22 Council Agenda Packet

i 9. Confidential Information. Iron Mountain shall have the obligation to reasonably protect the confidentiality of the Deposit Material. Except as provided in this Agreement Iron Mountain shall not use or disclose the Deposit Material. Iron Mountain shall not disclose the terms of this Agreement to any third party. Additional confidentiality provisions,understood and agreed to by the Parties,are stated in Exhibit D(attached hereto)and made a part of this Section 9. If Iron Mountain receives a subpoena or any other order from a court or other judicial tribunal pertaining to the disclosure or release of the Deposit Material,Iron Mountain will notify the Parties to this Agreement unless prohibited by law. After notifying the Parties,Iron Mountain may comply in good faith with such order. It shall be the responsibility of the Depositor or the Beneficiaries to challenge any such order;provided,however, that Iron Mountain does not waive its rights to present its position with respect to any such order. Iron Mountain will cooperate with the Depositor or the Beneficiaries,as applicable,to support efforts to quash or limit any subpoena,at such party's expense.Any party requesting additional assistance shall pay Iron Mountain's standard charges or as quoted upon submission of a detailed request. 10. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT,ALL LIABILITY,IF ANY,WHETHER ARISING IN CONTRACT,TORT(INCLUDING NEGLIGENCE)OR OTHERWISE,OF ANY PARTY TO THIS AGREEMENT SHALL BE LIMITED TO:$150,000(USD)FOR A CLAIM THAT RELATES TO THE ESCROW SERVICE ELECTED IN EXHIBIT A;AND AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR OWED TO IRON MOUNTAIN UNDER EXHIBIT V OF THIS AGREEMENT FOR A CLAIM THAT RELATES TO THE VERIFICATION SERVICES IN EXHIBIT V. THIS LIMIT SHALL NOT APPLY TO ANY PARTY FOR:(I)ANY CLAIMS OF INFRINGEMENT OF ANY PATENT,COPYRIGHT,OR TRADEMARK;(II)LIABILITY FOR DEATH OR BODILY INJURY;(III)PROVEN THEFT;(IV)PROVEN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;OR(V)ANY INTENTIONAL OR DELIBERATE BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 9 AND EXHIBIT D OF THIS AGREEMENT. 11. Consequential Damages Waiver. EXCEPT FOR ANY INTENTIONAL OR DELIBERATE BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 9 AND EXHIBIT D OF THIS AGREEMENT,THE PARTIES SHALL NOT BE LIABLE TO ONE ANOTHER PARTY FOR ANY INCIDENTAL,SPECIAL,PUNITIVE OR CONSEQUENTIAL DAMAGES,LOST PROFITS,ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE SERVICES,OR ANY OTHER INDIRECT DAMAGES,WHETHER ARISING IN CONTRACT,TORT(INCLUDING NEGLIGENCE)OR OTHERWISE EVEN IF THE POSSIBILITY THEREOF MAY BE KNOWN IN ADVANCE TO ONE OR MORE OF THE PARTIES. 12. General. (a) Incorporation of Work Requests. All valid Depositor and Beneficiary Work Requests are incorporated into this Agreement. (b) Purchase Orders. In the event that the Paying Party issues a purchase order or other instrument used to pay Service Fees to Iron Mountain,any terms and conditions set forth in the purchase order which constitute terms and conditions which are in addition to those set forth in this Agreement or which establish conflicting terms and conditions to those set forth in this Agreement are expressly rejected by Iron Mountain. (c) Right to Make Copies. Iron Mountain shall have the right to make copies of all Deposit Material but only as reasonably necessary to perform the Services.Iron Mountain shall,upon written request from the Depositor,immediately return to the Depositor,or destroy or delete,all copies of the Deposit Material that Iron Mountain has made,other than the copies of the verified Deposit Material made pursuant to Milestone 6 of the SOW in Exhibit V and stored pursuant to Section 4(e)of this Agreement. Upon request Iron Mountain shall provide a certification of destruction or deletion of all copies of the Deposit Material made by Iron Mountain pursuant to this Agreement,other than the copies of the verified Deposit Material made pursuant to Milestone 6 of the SOW in Exhibit V and stored pursuant to Section 4(e)of this Agreement. Iron Mountain shall copy all copyright,nondisclosure,and other proprietary notices and titles contained on Deposit Material onto any copies made by Iron Mountain. Any copying expenses incurred by Iron Mountain as a result of a Work Request to copy will be borne by the Party requesting the copies. Iron Mountain may request the Depositor's reasonable cooperation in promptly copying Deposit Material in order for Iron Mountain to perform this Agreement. Upon termination,Iron Mountain shall have the right to return or destroy copies of Deposit Material pursuant to Section 6(b)of this Agreement. (d) Choice of Law. The validity,interpretation,and performance of this Agreement shall be controlled by and construed under the laws of the State of Washington,as if performed wholly within the state and without giving effect to the principles of conflicts of laws. ..3 Updated December 2008 Page 4 of 33