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<br />hereunder and provide Customer a refund of any prepaid, unused
<br />fees for the Service.
<br />
<br />8. INSURANCE
<br /> Company, at their sole cost and expense, shall maintain
<br />coverage as set forth in Exhibit F.. This Agreement’s insurance
<br />provisions: (i) are separate and independent from the
<br />indemnification and defense provisions herein; and (ii) do not
<br />limit, in any way, the applicability, scope, or obligations of the
<br />indemnification and defense provisions.
<br />
<br />9. LIMITATION OF LIABILITY
<br />NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON,
<br />COMPANY AND ITS SUPPLIERS, OFFICERS, AFFILIATES,
<br />REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES,
<br />COMPANY AND CITY SHALL NOT BE RESPONSIBLE OR
<br />LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF
<br />THIS AGREEMENT OR TERMS AND CONDITIONS
<br />RELATED THERETO UNDER ANY CONTRACT,
<br />NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
<br />(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS
<br />OR INACCURACY OR CORRUPTION OF DATA OR COST
<br />OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES
<br />OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY
<br />INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
<br />CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER
<br />BEYOND COMPANY’S AND CITY’S REASONABLE
<br />CONTROL; OR (D) FOR ANY AMOUNTS THAT,
<br />TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL
<br />OTHER CLAIMS, EXCEED THE AMOUNTS SET FORTH IN
<br />THE INSURANCE REQUIREMENTS, IN EACH CASE,
<br />WHETHER OR NOT COMPANY HAS BEEN ADVISED OF
<br />THE POSSIBILITY OF SUCH DAMAGES.
<br />10. FORCE MAJEURE
<br />The Company shall not be liable to the Customer or any
<br />other person or entity for any delay or failure in the performance
<br />of this Agreement or for loss or damage of any nature whatsoever
<br />suffered by such party due to disruption or unavailability of
<br />communication facilities, utility or Internet service provider
<br />failure, acts of war, acts of vandalism, terrorism, lightning, fire.
<br />
<br />11. VERIFICATION AND AUDIT
<br />The Company may, at its expense, audit the Customer’s
<br />use of the Software and Application, provided that any such audit
<br />shall not interfere with the Customer’s business activities. The
<br />Company shall be permitted to conduct automated audits at its
<br />discretion, provided that such automated audits take place without
<br />accessing the Customer’s internal information technology
<br />networks and do not materially interfere with the Customer’s use
<br />of the Software and Application. If an audit reveals that the
<br />Customer has utilized more users than authorized or otherwise
<br />underpaid fees to the Company, the Customer shall pay the
<br />Company applicable fees based upon the agreed upon fee
<br />schedule.
<br />
<br />12. INDEPENDENT CONTRACTOR
<br />The relationship of Parties is solely that of independent
<br />contractors. Nothing contained in this Agreement shall be
<br />construed to give either party the power to direct or control the
<br />activities of the other or constitute either party as the other’s
<br />partner, joint venture member, co-owner, agent, franchisee or
<br />employee.
<br />
<br />13. COMMERCIAL ITEM
<br />This Section shall apply if the Customer is part of the
<br />United States government or is otherwise subject to regulations
<br />promulgated by the United States government for the procurement
<br />of goods and services. The Software and Application are both
<br />“commercial items” under FAR §2.101 and consist of
<br />“commercial computer software” and “commercial computer
<br />software documentation” under FAR §12.212 and DFARS §227-
<br />7202. Any use, duplication, or disclosure of the Software or
<br />Application or associated documentation by the Customer is
<br />governed solely by the terms of this Agreement. Any technical
<br />data customarily provided with the Software or Application shall
<br />also be governed by the terms of this Agreement pursuant to FAR
<br />§12.211. Further, the parties acknowledge that all items or services
<br />ordered and delivered under this Agreement are commercial items
<br />as defined under Part 12 of the Federal Acquisition Regulation
<br />(FAR). In particular, the Company agrees to be bound only by
<br />those Federal contracting clauses that apply to “commercial”
<br />suppliers and that are contained in FAR 52.212-5(e)(1) (OCT
<br />2003). Further, in the event that the parties negotiate or agree upon
<br />a change in the price provided in this Agreement, or should the
<br />Company become entitled to an equitable adjustment in the price,
<br />the Company shall not be required to comply with the contract cost
<br />principles or cost accounting standards of the FAR.
<br />
<br />14. BILLING
<br />The “Service Fees” are billed on an annual basis in
<br />advance; and, due upon receipt of invoice. This secures site,
<br />servers and resources necessary to begin project. The
<br />“Implementation Fees” are billed upon completion of the
<br />“Implementation Services” and the start of SaaS Subscription
<br />Services. All payments should be made directly to 3Di, Inc. and
<br />will not be deemed received until actually received in the
<br />Company’s offices. The Company’s mailing address for all
<br />payments is:
<br />3Di, Inc.
<br />Attention: Accounts Receivable
<br />3 Pointe Drive, Suite 307
<br />Brea, CA 92821
<br />
<br />
<br />15. MISCELLANEOUS
<br />This Agreement contains the entire agreement of the
<br />parties and supersedes (i) any and all previous or
<br />contemporaneous agreements with respect to the subject matter
<br />EXHIBIT 1
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