|
8
<br /> party that result from, relate to, arise out of,or are Incurred in connection with:(i)Metavante's gross negligence or willful misconduct
<br /> resulting in personal Injury or property damage; (10 Metavante's failure to comply with laws applicable to Metavante as a third party
<br /> provider of a Service;or(iii)a claim that a Service,Software,or Deliverable infringes a registered U.S.patent,trademark or copyright.
<br /> However, Metavante shall not be liable for(and Customer shall indemnify Metavante against) any infringement claim to the extent
<br /> resulting in whole or in part from:(a)Customer's use of a Service,Software or Deliverable In a manner or for a purpose not specifically
<br /> described in the Agreement (including any Schedules or Exhibits) or Specifications; (b) Customer's use of a Service, Software or
<br /> Deliverable with computer programs,processes,hardware,systems, or services owned,licensed or provided by someone other than
<br /> Metavante;or(c)Customer's products or services;or d)Client's failure to Implement corrections or changes provided by Metavante. if
<br /> a claim of infringement of a registered U.S.patent,trademark or copyright has been asserted,or in Metavante's opinion Is about to be
<br /> asserted,Metavante may,at its option either.(1)procure for Customer the right to continue using the Service,Software or Deliverable;
<br /> (2)replace or modify the Service,Software,or Deliverable so that it becomes non-infringing;(3)terminate the applicable Service and
<br /> refund all pre-paid fees covering future use of the Service,Software or Deliverable;or(4)defend the action on Customer's behalf and
<br /> pay any associated costs or damages.
<br /> 12. AUTHORiy
<br /> 12,1 Metavante. Metavante warrants that:
<br /> A. Metavante has the right to provide the Services hereunder,using all computer software required for that purpose.
<br /> B. Metavante is a corporation validly existing and In active status under the laws of the State of Wisconsin. it has all
<br /> the requisite corporate power and authority to execute,deliver and perform its obligations under this Agreement The execution,delivery
<br /> and performance of this Agreement have been duly authorized by Metavante,and this Agreement is enforceable in accordance with its
<br /> terms against Metavante. No approval,authorization or consent of any governmental or regulatory authorities is required to be obtained
<br /> or made by Metavante in order for Metavante to enter Into and perform its obligations under this Agreement.
<br /> 12.2 Customer. Customer warrants that:
<br /> A. Customer has all required licenses and approvals necessary to use the Services in the operation of its business.
<br /> B. Customer Is a municipal corporation validly existing and in good standing under the laws of the state of its
<br /> incorporation. It has all the requisite corporate power and authority to execute,deliver and perform its obligations under this Agreement.
<br /> The execution,delivery and performance of this Agreement have been duly authorized by Customer,and this Agreement is enforceable
<br /> in accordance with its terms against Customer. No additional approval, authorization or consent of any governmental or regulatory
<br /> authorities is required to be obtained or made by Customer in order for Customer to enter into and perform its obligations under this
<br /> Agreement.
<br /> 13. CONFIDENTIALITY AND OWNERSHIP
<br /> 13,1 Customer Data. Customer shall remain the sole and exclusive owner of all Customer Data and its Confidential information
<br /> (as defined in Section 13.3), regardless of whether such data is maintained on magnetic tape, magnetic disk,or any other storage or
<br /> processing device. All such Customer Data and other Confidential Information shall,however,be subject to regulation and examination
<br /> by the appropriate auditors and regulatory agencies to the same extent as if such information were on Customer's premises.
<br /> 13.2 Metavante Systems. Customer acknowledges that it has no rights in any software,systems, documentation, guidelines,
<br /> procedures and similar related materials or any modifications thereof provided by Metavante,except with respect to Customer's use of
<br /> the same during the Term to process Its data.
<br /> 13.3 Confidential Information. "Confidential Information" of a party shall mean all confidential or proprietary information and
<br /> documentation of such party, whether or not marked as such including, with respect to Customer, all Customer Data. Confidential
<br /> Information shall not include: (i) information which is or becomes publicly available (other than by the party having the obligation of
<br /> confidentiality)without breach of this Agreement;(ii)information independently developed by the receiving party;(iii)information received
<br /> from a Third Party not under a confidentiality obligation to the disclosing party; or (iv) information already in the possession of the
<br /> receiving party without obligation of confidence at the time first disclosed by the disclosing party. Metavante acknowledges that this
<br /> Agreement is not Confidential Information and that this Agreement in its entirety will be posted on Customer's public website,as required
<br /> by Washington law.
<br /> 13,4 Obligations of the Parties. Except as permitted under this Section 13.4 and applicable law(which Metavante acknowledges
<br /> includes without limitation the Washington Public Records Act),neither party shall use,copy,sell,transfer,publish,disclose,display,or
<br /> otherwise make any of the other party's Confidential Information available to any Third Party without the prior written consent of the other
<br /> party. Each party shall hold the Confidential information of the other party in confidence and shall not disclose or use such Confidential
<br /> Information other than for the purposes contemplated by this Agreement and,to the extent that Confidential Information of Customer may
<br /> be subject to the Privacy Regulations, as permitted by the Privacy Regulations, and shall instruct their employees, agents, and
<br /> contractors to use the same care and discretion with respect to the Confidential Information of the other party or of any Third Party
<br /> utilized hereunder that Metavante and Customer each require with respect to their own most confidential information,but in no event less
<br /> than a reasonable standard of care,Including the utilization of security devices or procedures designed to prevent unauthorized access
<br /> to such materials. Each party shall instruct its employees,agents,and contractors of its confidentiality obligations hereunder and not to
<br /> attempt to circumvent any such security procedures and devices. Each party's obligation under the preceding sentence may be satisfied
<br /> by the use of its standard form of confidentiality agreement,if the same reasonably accomplishes the purposes here Intended. All such
<br /> Confidential Information shall be distributed only to persons having a need to know such information to perform their duties in conjunction
<br /> With this Agreement. A party may disclose Confidential Information of the other party if required to do so by subpoena, court or
<br /> 02010 Fidelity National Information Services,Inc.and its subsidiaries.
<br /> 100453Everett City of Payment Services Master Agreement(BSP B2C Services)-04041-41C 6
<br /> 27
<br />
|