|
the RGR
<br />breach n.. Part m I3.m'nat8 this Agreement 'mmn.!'n { n I 1
<br />7.1 Subject to compliance with all terms and conditions, the initial term of this Agreement shall be from the Effective Date
<br />and shall continue for a period of twelve (12) months from that date. The City shall retain the option to renew for successive
<br />twelve (12) month periods by payment of fees as set forth In Section 6, above. Either party may terminate this Agreement at
<br />the end of the applicable term, with thirty (30) days prior written notice. If either party materially breaches any term of this
<br />Agreement and fails to cure such breach within thirty (30) days after notice by the non - breaching party (ten (10) days in the
<br />case of non - payment), the non - breaching party may terminate this Agreement immediately upon notice.
<br />7.2 Upon termination, Customer will pay in full for all Software Services performed up to and including the effective date of
<br />termination. Upon any termination of this Agreement: (a) all Software Services provided to Customer hereunder shall
<br />immediately terminate; and (b) each party shall return to the other party or, at the other party's option, destroy all
<br />Confidential Information of the other party in its possession.
<br />7.3 All sections of this Agreement which by their nature should survive termination will survive termination, including,
<br />without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
<br />8. WARRANTY AND DISCLAIMER
<br />8.1 OpenGov represents and warrants that: (1) it has all right and authority necessary to enter Into and perform this
<br />Agreement; and (ii) the Software Services shall be performed in a professional and workmanlike manner in accordance with
<br />generally prevailing industry standards.
<br />8.2 Customer represents and warrants that (1) it has all right and authority necessary to enter into and perform this
<br />Agreement; (ii) it owns all right, title, and interest in and to all data provided to OpenGov for use in and in connection with
<br />this Agreement, or possesses the necessary authorization thereto; and (iii) OpenGov's use of such materials in connection
<br />with the Software Services will not violate the rights of any third party.
<br />83 OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR
<br />FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE
<br />SOFTWARE SERVICES, EXCEPT AS SET FORTH IN THIS SECTION 8, THE SOFTWARE SERVICES ARE PROVIDED
<br />"AS IS" AND OPENGOV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
<br />IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON -
<br />INFRINGEMENT.
<br />9. LIMITATION OF LIABILITY. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES,
<br />REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO
<br />ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY CONTRACT,
<br />NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS
<br />OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF
<br />BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
<br />DAMAGES; OR (C) FOR ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL, EVEN IF SUCH PARTY
<br />HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, IN NO EVENT SHALL EITHER PARTY'S
<br />AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS
<br />AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO OPENGOV (OR, IN THE CASE OF CUSTOMER,
<br />PAYABLE) FOR THE SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT
<br />THAT GAVE RISE TO THE LIABILITY.
<br />10. MISCELLANEOUS. Capitalized terms not otherwise defined in these Terms and Conditions have the meaning set forth
<br />in the applicable Software Agreement. Neither party shall be held responsible or liable for any losses arising out of any delay
<br />or failure in performance of any part of this Agreement, other than payment obligations, due to any act of god, act of
<br />governmental authority, or due to war, riot, labor difficulty, failure of performance by any third party service, utilities, or
<br />equipment provider, or any other cause beyond the reasonable control of the party delayed or prevented from performing.
<br />OpsnGov shall have the right to use and display Customer's logos and trade names for marketing and promotional purposes
<br />in connection with OpenGov's website and marketing materials, subject to Customer's trademark usage guidelines (as
<br />provided to OpenGov). If any provision of this Agreement is found to be unenforceable or invalid, that provision will be
<br />limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect
<br />and enforceable. This Agreement is not assignable or transferable by either party without the other party's prior written
<br />consent, provided however that either party may assign this Agreement to a successor to all or substantially all of its
<br />business or assets. This Agreement (including the Software Agreement) is the complete and exclusive statement of the
<br />mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications,
<br />and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in
<br />a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this
<br />Agreement and neither party has any authority of any kind to bind the other party in any respect. In any action or
<br />proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
<br />All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally
<br />delivered; when receipt is electronically confirmed, If transmitted by facsimile or e -mail; the day after it is sent, if sent for next
<br />day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt
<br />
|