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City of Santa Ana_Master Services Agreement_5.23.23 7
<br />8.2 Empower Materials. As between the parties hereto, Empower and its Affiliates shall own
<br />all materials, documentation, user guides, forms, templates, business methods, trademarks, trade names,
<br />logos, websites, Empower Software, technology, computer codes, domain names, text, graphics,
<br />photographs, artwork, interfaces, and other information or material provided by Empower or its Affiliates
<br />hereunder (collectively, the “Empower Materials”). Empower grants to Plan Sponsor and Participants (as
<br />applicable) a non-exclusive, non-transferable license to use the Empower Materials during the term of the
<br />MSA for purposes of using Empower’s Services hereunder and subject to the terms and conditions set forth
<br />in this MSA and any terms of use associated with Empower Software. All rights with respect to the Empower
<br />Materials not specifically granted hereunder are reserved by Empower.
<br />9. INDEMNIFICATION, LIMITATION OF LIABILITY & INSURANCE
<br />9.1. Indemnification. Empower agrees to indemnify the Plan Sponsor from and against any
<br />and all expenses, costs, reasonable attorneys’ fees, settlements, fines, judgments, damages, liabilities,
<br />penalties or court awards asserted by a third party (collectively, “Damages”) to the extent resulting from
<br />Empower’s breach of this Agreement, negligence, or willful misconduct. Notwithstanding anything to the
<br />contrary herein, Empower shall not be liable to Plan Sponsor for any Damages resulting from: 1) any acts
<br />or omissions undertaken at the Direction of the Plan Sponsor or any agent or any third party authorized by
<br />Plan Sponsor to provide Direction to Empower, including but not limited to prior service providers,
<br />investment advisors, or any authorized agent thereof; 2) any performance of the Services that is in strict
<br />compliance with the terms of this Agreement; or 3) Plan Sponsor’s or its designee’s failure to provide
<br />accurate documents, material, information or data to Empower or its Affiliates, as applicable on a timely
<br />basis. Plan Sponsor acknowledges that Empower and its directors, officers, employees and authorized
<br />representatives are not responsible for the investment performance of any Investment Options under the
<br />Plan.
<br />9.2. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
<br />AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL,
<br />PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
<br />LOSS OF REVENUE OR PROFIT) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILIT Y
<br />OF SUCH DAMAGES.
<br />9.3. Insurance. Empower will, at its own cost and expense, procure and maintain in full force
<br />and effect throughout the term of this MSA insurance coverage that is reasonably appropriate to the
<br />Services provided under this MSA and any Schedule hereto. The requirements in this section are not
<br />intended to, and will not in any way, limit or qualify the liabilities and obligations of Empower under this
<br />MSA.
<br />10. DISPUTE RESOLUTION
<br />The parties shall engage in reasonable and good faith discussions to resolve any dispute arising
<br />out of or relating to this Agreement. If the parties are unable to agree between themselves, the parties will
<br />submit the dispute to non-binding mediation conducted by a private mediator agree d to by both parties. If
<br />the parties cannot agree on a mediator, the mediator may be selected by a nationally recognized,
<br />independent arbitration or mediation organization to which the parties mutually agree. The costs of
<br />mediation shall be borne equally by the parties, and each party shall pay its own expenses. If the parties
<br />are unable to resolve the dispute through non-binding mediation, either party may initiate litigation;
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