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<br /> any time thereafter, divulge, communicate or utilize, other than in the
<br /> performance of Agency's obligations under this Agreement, any Confidential
<br /> Information which Agency's or such person has acquired or may acquire,
<br /> whether technical or non,technicel, relating to the business and affairs of Bf,
<br /> including without limitation the ExacuTrack System and related documentation.
<br /> 10. FORCE MAJEURE.
<br /> BI shall not be liable for any delay in the performance or nonperformancewhich is due to.
<br /> causes beyond BI's control, including, but not limited ta,war,fire,floods,sabotage, civil unrest,
<br /> strikes, embargoes or delays, acts of God, acts of third parties, acts of governmental authority
<br /> or any agent or commission thereof, accident, breakdown of equipment, failure of third-party
<br /> telecommunications services (both-wireless and wire systems}, differences-with employees-or
<br /> similar or dissimilar causes beyond Bi's reasonable control.
<br /> '[1. AVAILABILITY
<br /> The parties agree and acknowledge that the terms of this Agreement are conditioned upon and
<br /> subject to the availability of BI's ExacuTrack ' products and service. BI shall not be liable for
<br /> any delay in performance due to limited availability of ExacuTrack products and service.
<br /> 12. SOFTWARE LICENSE INDEMNIFICATION.
<br /> 12.1. Bi shall indemnify Agency against the liabilities and costs arising from the
<br /> infringement by the Licensed Software of any United States copyright or patent,
<br /> or from the infringement of the trademark, trade sectet, or unfair competition
<br /> rights of a third party, provided that Agency promptly notifies BI in writing of the
<br /> suit or any claim of infringement and that BI is permitted to control fully the
<br /> defense and settlement of any claim or suit. Agency shall have the right, at its
<br /> own expense,to appear through counsel of its own choosing.
<br /> 12.2. BI shall have the right to settle any such claim or suit at its discretion and may
<br /> procure the right to continue using the software at issue or substitute alternative
<br /> substantially equivalent non-infringing software, computer programs and
<br /> supporting documentation.
<br /> 12.3. BI shall have no liability for any claim or suit based on any United States
<br /> copyright or patent, or the trademark, trade secret, or unfair competition rights of
<br /> a third party based on any modification done to the Licensed Software by the
<br /> Agency.
<br /> 12.4. Agency agrees to indemnify and hold BI and its employees, agents, and
<br /> contractors, harmless from any and all claims of third parties resulting from or
<br /> incidental to the Agency's use or operation of the Licensed Software.
<br /> 13. ASSIGNMENT OF SOFTWARE LICENSE.
<br /> Agency will not assign, sublicense, or otherwise transfer any of its rights under this Agreement
<br /> or the license granted hereby without prior written consent of BI.
<br /> 14. INSURANCE
<br /> Each party hereto shall maintain comprehensive general liability insurance, including acts,
<br /> errors or omissions end contractual liability insurance, in an amount not less than$1,000,000.
<br /> Upon request, the parties hereto shall furnish to the other a certificate of insurance or other
<br /> evidence that the required insurance is in effect.
<br /> GPSEverett,city of,WA06 6
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