Res 2011-092 - Laserfiche WebLink

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51 CONTRACT TO THE CITY OF SAN MARCOS - QT- 2901/3 To the extent permissible by law, and without waving any immunity and limitations on liability granted to customer under applicable law and the constitution of the State of Texas; the Customer will indemnify and hold New Dawn, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use, in accordance with the terms of the agreement, of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation of representations and warranties; or (iii) a claim arising from the breach by Customer or Users of this Agreement, provided in any such case that New Dawn (a) gives written notice of the claim to the Customer within 30 business days from the date of its receipt of notice of a claim ; (b) gives Customer sole control of the defense and settlement of the claim (provided that such settlement does not affect New Dawn' business or hosting service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim. New Dawn will indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the hosting service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by New Dawn of its representations or warranties; or (iii) a claim arising from breach of this Agreement by New Dawn; provided that Customer (a) gives written notice of the claim to the Customer within 3o business days from the date of its receipt of notice of a claim to New Dawn (b) gives New Dawn s sole control of its defense and settlement of the claim (provided that New Dawn may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to New Dawn all available information and assistance; and (d) has not compromised or settled such claim. io. Purchase Price and Payment Terms Customer agrees to pay to New Dawn the total price according to the Payment Terms. The total price and payment terms are as follows: Customer agrees to pay all Invoices within sixty (60) business days from the date of City's receipt of an accurate invoice. ii. Entire Agreement and Severability This Agreement and any included Appendices constitutes the entire understanding between the parties hereto and may not be modified and /or amended unless any such modification or amendment is reduced to writing and signed by both Customer and New Dawn. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, the remaining provisions of this Agreement will remain in full force and effect. 12. Disclaimer of Warranties The Customer understands that the general reliability of the private wide -area network defined as connections to and from the Hosted Service, external: network computers, servers and related systems of Internet, may be controlled by factors beyond the control of New Dawn; because of this it is impossible for New Dawn to guaranty the provision of the JustWare System will be uninterrupted or that the Customer will be able to properly access and use the JustWare System due to causes beyond the control of New Dawn. 13. Limitation of Liability s 4 New Dawn