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<br /> include, but is not limited to, all ESN Claims against the ORCA Indemnitee(s) by an
<br /> employee or former employee of the University or College, and the Institutions, by mutual
<br /> negotiation, expressly waive all immunity and limitation on liability, as respects the ORCA
<br /> Indemnitee(s) only, under any industrial insurance act, including Title 51 RCW, other
<br /> worker's compensation act, disability benefit act, or other employee benefit act of any
<br /> jurisdiction which would otherwise be applicable in the case of such claim. In the event of
<br /> litigation between the Parties to enforce the rights under this subsection, reasonable
<br /> attorney fees shall be allowed to the substantially prevailing party.
<br /> 10.6 The University agrees that, while the ORCA Elements and Non-ORCA Elements co-exist
<br /> on the ORCA UW Card, they are separate and independent of each other. The
<br /> rcshall nc not
<br /> shall nyOtt use any Non-ORCA ElemenRCA Elements for ts forposes. The
<br /> ORCA purposes.
<br /> Participating Ag
<br /> 10.7 The University shall be solely responsible for: (a) printing, encoding, recording,i
<br /> and
<br /> otherwise creating or using in any way any Non-ORCA Element; (g) g g and
<br /> implementing any program(s) which make use of a Non-ORCA Element, including but
<br /> not limited to establishing the terms and conditions of such program(s), communicating
<br /> about the program(s) with individuals to whom it distributes the ORCA UW Card, and
<br /> responding to questions complaints;and Non ORCA Element financial or legal liability arising out
<br /> of the program(s) that make use ofany
<br /> 10.8 For the ORCA UW Card, the University (a) shall be solely responsible for obtaining all
<br /> licenses, permissions, consents or other authorizations needed to print, encode, record,
<br /> and otherwise create or use in any way any Non-ORCA Element; and (b) shall comply
<br /> with all applicable federal,dsbufenotdlimitedlaw
<br /> to constitutiogs, statuteand s,in
<br /> regulations,
<br /> ny Non-
<br /> ORCA Elements, including
<br /> ordinances, and resolutions.
<br /> 10.9 a. The University shall defend, indemnify and hold harmless the Participating Agencies,
<br /> their respective officers, officials, agents and employees (herein, ORCA Indemnitee(s)),
<br /> from and against any and all suits, claims, actions, losses, costs, penalties and damages
<br /> of whatsoever kind or nature to the extent they arise out of, or relate to any act or omission
<br /> of the University in creating, using or in any way concerning the Non-ORCA Elements and
<br /> any program(s)that make use of the Non-ORCA Elements ("Non-ORCA Elements
<br /> Claims"). This defense and indemnification obligation shall include, but is not limited to, all
<br /> Non-ORCA Elements Claims against the ORCA Indemnitee(s) by an employee or former
<br /> employee of the University, and the University, by mutual negotiation, expressly waives all
<br /> immunity and limitation on liability, as respects the ORCA Indemnitee(s) only, under any
<br /> industrial insurance act, including Title 51 RCW, other Worker's compensation act,
<br /> disability benefit act, or other employee benefit act of any jurisdiction which would
<br /> otherwise be applicable in the case of such claim. In the event of litigation between the
<br /> Parties to enforce the rights under this subsection, reasonable attorney fees shall be
<br /> allowed to the substantially prevailing party.
<br /> b. The Participating Agencies shall defend, indemnify and hold harmless the University,
<br /> the College and their officers, officials, agents and employees ("Institution Indemnitees"),
<br /> from and against any and all suits, claims, actions, losses, costs, penalties and damages
<br /> of whatsoever kind or nature to the extent they allege that
<br /> the
<br /> �rPaemaratina png aencies'
<br /> tent or other
<br /> use of the ORCA Elements violates a third party's copyright,
<br /> intellectual property rights ("ORCA Elements Infringement Claims"). Provided, however,
<br /> the Participating Agencies shall have no obligation to defend and indemnify ORCA
<br /> 55 Page 10 of 44 Final, October 2011
<br /> U-PASS Agreement
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