|
INC.
<br />successors and assigns (each an "Indemnified Person"), from and against all claims by any third party asserted in
<br />any cause of action, and including any damages, penalty, cost or expense (including reasonable attorneys' and
<br />witnesses' fees and costs), to the extent such cause of action arises from (a) the Indemnifying Party's gross
<br />negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material
<br />breach by the Indemnifying Party of any of its representations, warranties, covenants or obligations under this
<br />Agreement; PROVIDED, however, such indemnity shall not extend to claims arising from any breach of this
<br />Agreement or willful or negligent act by the Indemnified Party or an Indemnified Person of the Indemnified Party,
<br />and provided that: (i) the Indemnified Person promptly notifies the Indemnifying Party of the claim in writing;
<br />and, (ii) the Indemnified Person and Indemnified Party provide the Indemnifying Party with the assistance,
<br />information and authority necessary to perform the Indemnifying Party's obligations under this Section. The
<br />Indemnified Person shall be entitled to participate at its option and expense through counsel of its own selection,
<br />and may join in any legal actions related to any such claims, demands, losses, damages, costs, expenses and
<br />penalties. The Indemnifying Party shall not enter into any settlement which includes an admission of negligence
<br />or wrongdoing by any Indemnified Person, without the prior written consent of such Indemnified Person.
<br />S. NOTIFICATION OF THIRD -PARTY ACTION OR CLAIM. Client shall notify MMI of any third
<br />party lawsuit, action, and proceeding or claim brought or threatened by a third party against Client or its employee,
<br />subcontractor, or other representative or agent based in part on Client's or an Applicant's use of the CSOPH
<br />System, including without limitation (a) claims regarding privacy, security, collection, use, processing, or
<br />disclosure of Client Data collected through or stored by the eSOPH System, (b) and claims where it is reasonably
<br />likely that MMI will be named as a party or witness.
<br />9. CORRECTIVE ACTIONS. If all or any part of the Software is held, or MMI determines that it could
<br />be held, to infringe, wrongfully use or misappropriate any third -party intellectual property right, MMI at no cost
<br />to Client: (a) will procure for Client the right to continue using the eSOPH System in accordance with its rights
<br />under this Agreement; (b) replace the item with a substantially equivalent item that does not infringe, wrongfully
<br />use or misappropriate any third -party intellectual property rights; or (c) modify the item (without material loss of
<br />functionality) so that it no longer infringes, wrongfully uses or misappropriates any third -party intellectual
<br />property right. If MMI is unable to successfully accomplish any of the actions described above after using its
<br />commercially reasonable best efforts to accomplish each of them in a timely manner, then MMI will refund to
<br />Client a pro -rated amount of the license fees paid by Client hereunder in connection with the unused portion of its
<br />licensed rights to the eSOPH System under this Agreement. The remedies set forth in this Section 9 are Client's
<br />sole and exclusive remedy and MMI's sole obligation with respect to breach of the warranty contained in Section
<br />6.2.2.
<br />10. INSURANCE
<br />10.1 Throughout the Term MMI, at its sole expense, Will carry and maintain: (a) Commercial General
<br />Liability Insurance in the amount not less than $1,000,000 combined single limit per occurrence, $2,000,000
<br />aggregate; (b) Professional Liability Insurance in the amount not less than $1,000,000 per claim and in the aggregate;
<br />and (c) "Cyber" Insurance in the amount not less than $1,000,000 combined single limit occurrence, $2,000,000
<br />aggregate. MMI will request a Certificate of Insurance from the insurance agent or carver listing Client as an
<br />Additional Insured, and provide the certificate to the Client.
<br />10.2 Client represents it is self -insured or has appropriate insurance to fulfill and maintain its obligations
<br />and duties under this Agreement.
<br />11. NOTICES. All notices and requests in connection with this Agreement will be deemed given as of the
<br />day they are received either by messenger, delivery service, or in the United States of America mails, postage
<br />prepaid, certified or registered, return receipt requested, and addressed to MMI or Client at the following
<br />addresses:
<br />MASTER SOFTWARE SUBSCRIPTION SERVICES AGREEMENT ("MSSSA") PAGE 16 OF 24
<br />Version: May 30, 2023
<br />
|