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DAMAGES (INCLUDING LOST PROFITS, DATA OR SAVINGS), INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES OF ANY KIND WHATSOEVER, EVEN IF THAT PARTY IS INFORMED OF THEIR POSSIBILITY. 7.5 This Agreement may be terminated at will by the City upon at least ninety (90) calendar days prior written notice to the Vendor. 7.6 In the event this Agreement is terminated, as provided for in this Article, by either the City or the Vendor after the City has made an annual payment for Services, the Vendor will refund to the City the pro-rated amounts for those services not performed by the Vendor within thirty (30) calendar days from the date of termination. 7.7 In the event of termination, as provided in this Article, for Products or Services that were not included in the annual payment (Additional Services) the Vendor will be compensated for Services performed or Products ordered or received by the Vendor based upon the City's approved Project Approach Plan, including any and all direct costs incurred by the Vendor on the City's behalf as allowed under this Agreement and not paid for by the City prior to the termination date which are deemed by the City to be in accordance with this Agreement. This amount will be paid by the City upon the Vendor's delivering to the City the necessary invoices and all information and materials developed or accumulated by the Vendor in performing the Services or the provision of Products described in this Agreement, whether completed or in progress. The expense of reproduction of these items, if applicable, will be borne by the City. ARTICLE 8 PATENTS, COPYRIGHTS, PROPRIETARY RIGHTS BONDING, INSURANCE AND INDEMNITY 8.1. The Vendor represents and warrants that the exercise of its rights granted in this Agreement does not infringe on any third-party patent, copyright, trademark, trade secret, or other intellectual property right. Solely as to Products purchased from and installed by Vendor, Vendor will defend and indemnify City against any claims or suits brought against City based upon a claim of infringement of any United States patent or copyright arising out of the City's use of the Products. As conditions precedent to Vendor's indemnification obligation, City will fully comply with this Agreement with respect to retention of, assignment of, and/or sublicense of, the right to use the Software; notify Vendor promptly of the suit in writing; and, at Vendor's request, cooperate and assist in the defense as requested by Vendor. This indemnity will not extend to any suit or proceeding which is based upon: (i) a claim covering any combination of equipment and/or software in which the Product is solely an element and such element by itself does not form a basis for the claim; (ii) a claim arising from any item furnished by City, including, but not limited to, products or any portions thereof installed by a third party other than Vendor; (iii) a claim arising from use of components manufactured, developed or programmed at City's request to City's production specifications; (iv) a claim arising from use of the components in a manner or for a purpose not contemplated by this Agreement; (v) a claim arising from those portions of the Product (a) which are modified after shipment by any party other than Vendor, if the alleged infringement relates to such modification, or (b) directly or indirectly combined with any non-Vendor equipment, products, processes or materials where the Brazos Technology, Hand Held Ticket Writer System Agreement 12