2011/11/30 Council Agenda Packet

11 privileges to the ORCA Business Account Website, implement Card Blocks and Product Blocks, remove the University's and/or College's account from the ORCA Whitelist, and decline to accept and fulfill any pending or new orders from the University and/or College. 19.3 Termination for Lack of Second-year Pricing. This Agreement may be terminated at any time after September 30, 2012 if the Parties have not agreed upon an amended Attachment 2 to apply to the second year of this Agreement or have not agreed in writing to a later date by which the amendment must be completed. Such Termination shall take effect thirty (30) calendar days after a Party serves a Notice of Termination by certified mail, return receipt requested, on the other Parties. Upon the effect of such a termination, the Lead Agency may immediately terminate the University's and/or College's access privileges to the ORCA Business Account Website, implement Card Blocks and Product Blocks, remove the University's and/or College's account from the ORCA Whitelist, and decline to accept and fulfill any pending or new orders from the University and/or College. In the event of a termination for lack of second-year pricing, the Institutions shall pay a pro rata amount for each full or partial month after September 30, 2012 until the termination takes effect. The amount for each such month shall be 1/12 of the annual costs specified in Attachment 2. 19.4 Notwithstanding any termination of the Agreement, the Parties shall remain liable to satisfy and comply with all of their obligations under this Agreement and at law with regard to, or arising out of, any orders submitted or any of their acts or omissions occurring prior to the effective date of the termination, including but not limited to paying all amounts due or incurred prior to the effective date of the termination and any fees, charges, collection costs or other costs arising from a failure to make timely and effective payment. 20.0 LIMITATION OF WARRANTIES To the extent permitted by law, the Parties disclaim all implied or statutory warranties and duties of every kind, including but not limited to any implied warranties of merchantability or fitness for a particular purpose, any implied warranties created by trade usage, course of dealing or course of performance, any implied warranties of quiet enjoyment or non-infringement and any implied warranties of workmanlike effort or lack of negligence. For clarification, nothing in this section shall be construed as limiting the card replacement provisions of Section 11.9. 21.0 FORCE MAJEURE Any Party to this Agreement shall be excused from performance of any responsibilities and obligations under this Agreement, and shall not be liable for damages due to failure to perform, during the time and to the extent that it is prevented from performing by a cause directly or indirectly beyond its control, including, but not limited to: any incidence of fire, flood, snow, earthquake, or acts of nature; strikes or labor actions; accidents, riots, insurrection, terrorism, or acts of war; order of any court of competent jurisdiction or authorized civil authority commandeering material, products, or facilities by the federal, state or local government; or national fuel shortage ("Force Majeure Event"); when satisfactory evidence of such cause is presented to the other Parties to this Agreement, and provided that such non-performance is beyond the control and is not due to the fault or negligence of the Party not performing. In no event should this provision eliminate the obligation of the University to make payment to the Participating Agencies pursuant to the terms of this Agreement. 63 Page 18 of 44 Final, October 2011 U-PASS Agreement