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Cherry
<br />Bekaert
<br />Proposal for City of Santa Ana
<br />`� Cherry Bekaert
<br />Your Guide Forword
<br />Bekaert through agencies (so long as Customer does not direct such agencies to solicit Cherry Bekaert's
<br />employees). In the event Customer breaches this Section 10, Cherry Bekaert may elect to require
<br />Customer to pay to Cherry Bekaert as liquidated damages an amount equal to 33.33% of the total gross
<br />compensation (including base salary and any bonuses or incentive compensation) paid to the employee
<br />by Cherry Bekaert during the 12-month period immediately preceding the separation of the employee
<br />from Cherry Bekaert. The Parties acknowledge and agree: that Cherry Bekaert has invested significant
<br />time, effort and expense into the recruitment, training and retention of its employees; that the Parties
<br />cannot now determine the amount of the damages that Cherry Bekaert would sustain upon the breach by
<br />Customer of any of the provisions of this Section 10; and that it would be very difficult to determine and
<br />quantify that amount upon a breach by Customer of any of the provisions of this Section 10.
<br />11. Indemnification. Customer agrees to defend, indemnify and hold harmless Cherry Bekaert and
<br />its members, officers, directors, employees, agents, successors and permitted assigns from any and all
<br />losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or
<br />expenses of whatever kind (including reasonable attorneys' fees and court costs) and the cost of
<br />enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising
<br />out of or resulting from any claim or action arising out of or relating to: (a) the conduct of Customer's
<br />business, including, without limitation, the use by Customer of the Services unless solely caused by
<br />Cherry Bekaert's gross negligence or willful misconduct; (b) bodily injury, death of any person, or damage
<br />to real or tangible property resulting from the negligent or willful acts or omissions of Customer; (c)
<br />Customer's material breach of any representation, warranty, or obligation in this Agreement or any breach
<br />of any applicable Technology Partner terms of use, end user license agreement, user agreement, or other
<br />terms and conditions of any Technology Partner; (d) allegations that any Customer Data or the use
<br />thereof infringes or misappropriates any intellectual property or proprietary rights of a third party or
<br />violates any applicable law; or (e) known misrepresentations by a member of Customer's management.
<br />12. Limitation of Liability.
<br />12.1. EXCEPT FOR LIABILITY ARISING FROM ANY BREACH OF SECTION 4 OR FOR A
<br />PARTY'S OBLIGATIONS PURSUANT TO SECTION 11 HEREIN, IN NO EVENT WILL EITHER PARTY
<br />BE LIABLE TO THE OTHER OR TO ANY THIRD -PARTY FOR ANY LOSS OF USE, REVENUE, OR
<br />PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
<br />EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF
<br />CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER
<br />SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF
<br />ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
<br />12.2. EXCEPT FOR LIABILITY ARISING FROM ANY BREACH OF SECTION 4 OR FOR A
<br />PARTY'S OBLIGATIONS PURSUANT TO SECTION 11 HEREIN, IN NO EVENT SHALL THE
<br />AGGREGATE CUMULATIVE LIABILITY OF CHERRY BEKAERT HEREUNDER, WHETHER IN
<br />CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT
<br />OF FEES ACTUALLY PAID TO CHERRY BEKAERT UNDER THE SOW FROM WHICH THE CLAIM
<br />ARISES. CUSTOMER ACKNOWLEDGES THAT THE FEES PAID BY IT REFLECT THE ALLOCATION
<br />OF RISK SET FORTH IN THIS AGREEMENT AND THAT CHERRY BEKAERT WOULD NOT ENTER
<br />INTO THIS AGREEMENT OR A PARTICULAR SOW WITHOUT THESE LIMITATIONS ON LIABILITY.
<br />12.3, Timely Claims. Excluding claims related to taxes or the non-payment of Fees, and to the
<br />extent permitted by law, no Party shall bring any claim related to this Agreement more than eighteen (18)
<br />months after the cause of action accrues.
<br />3800 Glenwood Avenue, Suite 200, Raleigh, NC 27612 1 P 919.782.1040 1 cbh.com
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