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(b) Solely as to Syst<:ms purchas<:d from and installed b;. Williams. Williams shall dcfcnd and ind<:mnify CUiwm<:r against any claims or suit" brought against Customer hased upon a claim of II1fringement of an~ United Statcs pat<:nt arising out of the use of System. A eonditior precedent to Williams' obligation stated above shall be that Custom<:r shall han: fully compli<:d with the requirements of this Agreemen: v. ith respect to retention of. assignment of. and. or sublicense of the right to use the software. Williams shall pa~ costs and damages in an: such suit. provided Williams is notified promptly in \Hiting of the suit. Customer gives Williams or the equipment supplier thc sol<.: right t" defend and settle any suit and Customer. at Williams request. is available to cooperate and assist in the defense This indemnity does n,': extend to (i) any suit or proct:cding which is based upon a patent claim covering any combination of equipment and/or soft\\ar<: in \\hief-. th<: Syslt:m is solely an el<.:ment and such <:Iement does not form a basis for thc claim. or (ii) any item furnished by Customer. includin~. but not limited to. Systcms or any portions thereof installed by a vcndor othcr than Williams. Should the S1 stem become subject to a clairr' of infringt:ment of a United States patent. Williams may. at its e\.pensc and option: (i) procure for Customer the right to continue' unintcrrupted. Customer's use of the affected eqllJpment. software. or SCf\ ices: or (ii) rcplace or modit~ the same so ,that it become" noninfringing: or (iii) refund to Customer the deprcciated value ofthc affcctcd itt:ms as carried on the books of Customer for tax purpost:,. on the date of any injunction. ifapplicab1e. in which cast: Customt:r shall rcturn thc affectcd items to \\/illlams. In no event shall William,' liability hereunder exceed the Cash Price of thc S~ stem. This indcmnity shall not apply to any claims arising out of use of affectcd itcm, manufactured at Customer's requcst to Customt:r's production specifications or out of usc of the affected items in a manner or for a purpos<: not contemplated by this Agrecmcnt. Customcr's SDle and t:xclusive remcdy against Williams with regard to such a patent infringemcn: claim shall be as set forth above. 18) DEF AUL T. If any material breach of this Agreement. or any other agreement bctween the parties. continues uncorrected for more than lv\ent; (20) days after writtt:n notice from thc aggricved party describing the breach. the aggricved party shall bc entitled to declare a ddault undcr thi, Agrecment and pursue any and all rcmedies available at law or equity except as specifically limited elst:\\here in this Agreement. In addition. I:' Customt:r is the aggric\cd party. Customer may suspcnd its payment obligation rclating to the brt:ach until Williams breach is corrt:cted. and I:' Williams is the aggrievcd party. Williams may suspcnd performance of its obligations until Customer's breach is corrected. 19) FORCE MAJEURE. Williams' pcrformance shall be adjusted or suspcndcd by Williams to the e\.tent performance is beyond William,' rcasonable control for reasons including, without limitation, the following: strikes. work stoppages, fire. water. govcmmental action. acts l):' God (incluqing. without limitation. earthquakes. rains. floods or lightning). or public enemy. delays of suppliers. subcontractors. Po\\c:- company. local exchange company. or other carrier. 20) ATTACHMENTS. All attachments applicable to a particular System or ~laintenancc shall be attached to the Order Form applicable to sue:- System. with the exception of the following which appl~ to each Order Form: 2 I) MISCELLANEOUS. (a) If Williams delivers additional Equipment or Software. or Maintenance. the terms of this Agrt:emcnt. subject tc' Williams' pricc quotes. will govern. (b) Williams reserves the right to subcontract any and all of the work to be performed by it under thi, Agreement. (c) This Agreement is not assignable by Customer without the prior writtcn consent of Williams. Any attempt to assign any of thc rights. duties or obligations under this Agreement without such consent will. at Williams' option, be deemed void Or a matcrial default or accepted in Williams' sole discretion. (d) The waiver by either party of any default will not operate as a waiver of any subsequcnt default. (el Customer will pay all of Williams' costs or expenses. including reasonable attorney's and collection fees. incurred in enforcing this AgrecmenL (f) Williams' obligation is contingent upon a credit rcpon satisfactol)' to Williams. (g) This Agreement superscdes all prior or contemporaneous proposals, communications and negotiations. both oral and written and constitutcs the entire agreement betwcen Williams and Customer \\ itJ-: rcspect to the purchase of the System. Any represcntations. warranties or statemcnts made by an employee. salt:sperson or agent of William, and not expressed in this Agreement are not binding upon Williams. Customer acknowledges that it has read this Agreement. has received an': rcviewed any and all documents refert:nced in it. understands it. and is tlound by its terms. (h) If any court holds any portion of this Agreemcn: unenforceable. the remaining language shall not bc affected. (i) Any modification must be in writing and executed by an authorizcc representative of the party against \\hom enforcemcnt is sought. (j) E\.cept for payment of amounts due and indemnification obligations. nL' action. regardless of form. arising out of this Agreement may be brought by either pany more than one ~ear after the cause of action has accrucd. (k) This Agreement is decmed made and GOVERNED BY THE LAW OF THE STATE OF OKLAHOMA except for its rub regarding the conflict of laws. (I) Customer's signature on a facsimile transmission of an Order Form or any amendment or attachment theretl'. when sent from Customer's office to Williams. may bc relied upon by Williams in Iicu of an inked signature and shall be binding on Customer and satisfy any applicable Statute of Frauds. Williams' copy of such facsimilc transmission shall serve as the original of any such documcnL (m) This Agreement may be t:xecuted contemporancously in one or more countcrparts. each of which shall be deemed an original but all o( which togethcr shall constitutc one and the same instrumcnt. (0) Customer agrees that neither it nor any of its affiliates will solicit any of thc Williams employees providing services pursuant to this .-\greement with offers of cmployment during the term of this Agreement. WILLIAMS COMMUNICATIONS SOLUTIONS. LLC CUSTOMER: The City of San Marcos By: By: Name: Title: Name: Title: Master Ordering Agreement 12/98 Page 5 0 f 5