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City of Santa Ana_Master Services Agreement_5.23.23 9
<br />for its own taxes, including income, franchise, privilege, gross receipts, sales and use, excise, real and
<br />personal property (including software), payroll and any other taxes or assessments, surcharges or
<br />governmental charges that may be imposed, levied, collected or assessed by a taxing jurisdiction. If
<br />applicable, the parties shall reasonably cooperate with each other to enable each party to more accurately
<br />determine its own tax liability and to minimize such liability to the extent legally permissible and
<br />administratively reasonable.
<br />12.3. No Third Party Beneficiaries. This MSA is solely for the benefit of the parties hereto and
<br />their Affiliates and is not intended to confer any rights or remedies upon any other person.
<br />12.4. Assignment. This MSA shall be binding upon and inure to the benefit of each of the
<br />parties, their Affiliates, successors and permitted assigns; provided, however, that neither party may assign
<br />its rights or obligations hereunder without the other party’s prior writte n consent. Notwithstanding the
<br />foregoing, a party may assign this MSA in connection with: (i) the sale of substantially all of its assets or
<br />the assets of any business unit to an entity that assumes the assignor ’s obligations under this MSA; (ii) a
<br />merger, acquisition or divestiture; and/or (iii) a transfer to a parent or Affiliate, in each case without the other
<br />party’s consent.
<br />12.5. Entire Agreement. Each Schedule, including any Exhibits, notices and attachments
<br />including an incorporation by reference of the terms and conditions of this MSA), constitutes the entire
<br />agreement of the parties thereto with respect to the subject matter thereof and supersedes all prior drafts,
<br />agreements, negotiations and proposals, written or verbal, relating to the Services contained in the
<br />applicable Schedule. This MSA or any Schedule may be amended by written agreement of the parties; for
<br />that purpose, emails do not constitute signed writings . Notwithstanding the foregoing, Empower may add
<br />or enhance the Services, update the method of providing the Services without any reduction in service, or
<br />modify the Services to comply with applicable laws by providing written notice to Plan Sponsor at least 30
<br />days in advance of the effective date of such change, provided that Plan Sponsor may opt out of certain
<br />Services that directly impact Participants and any changes that result in an increase in fees to the Plan .
<br />Any Empower notices or policies that are attached to or referenced in this MSA may be updated by
<br />Empower at any time, provided that such updates shall not materially degrade the rights or protections set
<br />forth therein. No waiver of any breach of any provision of this MSA shall constitute a waiver of any prior,
<br />concurrent or subsequent breach of such provision or any other provision hereof and no waiver shall be
<br />effective unless made in writing.
<br />12.6. Governing Law; Waiver of Jury Trial. Unless and to the extent provided otherwise in a
<br />Schedule hereto, this MSA shall be construed and enforced in accordance with and governed by the laws
<br />of the state of California, without regard to conflict of law principles, and any claim arising under or related
<br />to this MSA shall be subject to the exclusive jurisdiction of the federal and state courts located in California.
<br />Both parties agree to waive any right to have a jury participate in the resolution of any dispute or claim
<br />arising out of, connected with, related to or incidental to this MSA to the fullest extent permitted by law.
<br />12.7. Force Majeure. Neither party shall be liable to the other for any and all losses, damages,
<br />costs, charges, attorney fees, payments, expenses or liability due to delay or interruption in performing its
<br />obligations hereunder, and without the fault or negligence of such party, due to causes or conditions beyond
<br />its control, including, without limitation, labor disputes, riots, war and war -like operations including acts of
<br />terrorism, explosions, sabotage, civil disturbance, governmental restriction, transportation problems, failure
<br />of power or other utilities including phones, internet disruptions, fire or other casualty, natural disasters,
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