|
<br /> 8 Cartegraph_MPA 04-2013
<br />such Information which is submitted in writing to Cartegraph by the Customer and which is clearly and conspicuously
<br />marked as confidential shall be protected by Cartegraph against unauthorized disclosure by using the same degree
<br />of care and discretion that Cartegraph uses with similar Information which Cartegraph does not want disclosed to
<br />third parties. However, Cartegraph shall not be required to protect Information which (a) is or becomes publicly
<br />available, (b) is already in Cartegraph’s or its related companies’ possession, (c) is independently developed by
<br />Cartegraph outside the scope of this Agreement, or (d) is rightfully obtained from third parties. Cartegraph’s
<br />obligations under this Section shall cease immediately upon return to Customer or destruction by Cartegrap h of such
<br />Information.
<br />B. Cartegraph shall not be required to protect any ideas, concepts, know-how, or techniques relating to data, electronic
<br />document processing and image processing developed or resulting from the Information or the Services provided
<br />under this Agreement.
<br />18. Infringement Indemnification.
<br />A. Cartegraph or Third Party Licensors will defend any action, suit or proceeding brought against Customer if based on
<br />a claim that Products infringe any United States patent or copyright of any third party (“Intellectual Property”) provided
<br />that Customer promptly notifies Cartegraph or Third Party Licensors immediately and gives Cartegraph or Third Party
<br />Licensors full authority, information and assistance for the action’s defense. Cartegraph or Third Party Licen sors will
<br />pay all damages and costs awarded therein against Customer, but shall not be responsible for any compromise made
<br />without its consent. Cartegraph or Third Party Licensors may, at any time it is concerned over the possibility of such
<br />an infringement, at its option and expense, replace or modify Products so that infringement will not exist. In the
<br />alternative, Cartegraph may remove a component of Products involved and refund to Customer the price as
<br />depreciated by an equal annual amount over five (5) years.
<br />B. Cartegraph and Third Party Licensors shall have no liability to Customer if any Intellectual Property infringement or
<br />claim thereof is based upon the use of Products in connection or in combination with equipment, devices, or software
<br />not supplied by Cartegraph or used in a manner not expressly authorized by this Agreement or in a manner for which
<br />Products were not designed, or if the claim of infringement would have been avoided but for Customer’s use of
<br />software other than the latest, unmodified release of Software made available to Customer by Cartegraph.
<br />C. Customer shall indemnify and hold Cartegraph and Third Party Licensors harmless from any loss, cost or expense
<br />suffered or incurred in connection with any claim, suit or proceeding brought against Cartegraph or Third Party
<br />Licensors so far as it is based on a claim that the use, sale or licensing of any Products delivered hereunder and
<br />modified or altered or combined with any products, device, or software not supplied by Cartegraph hereunder
<br />constitutes an infringement because of such modification, alteration or combination.
<br />19. Miscellaneous.
<br />A. Taxes. Customer shall pay all taxes, levies and similar governmental charges, however designated, and all liabilities
<br />with respect thereto which may be imposed by any jurisdiction, including, without limitation, customs, privilege,
<br />excise, sales, use, value-added and property taxes levied or based on gross revenue or operation of this Agreement,
<br />except those taxes based upon Cartegraph’s net income.
<br />B. Relationship of the Parties: Cartegraph and Customer are independent of each other. This Proposal does not and is
<br />not intended to create in any way or manner or for any purpose an employee/employer relationship or a principal -
<br />agent relationship. Neither party is authorized to enter into agreements for or on behalf of the other, to create any
<br />obligation or responsibility, express or implied, for or on behalf of the other, to accept payment of any obligation due
<br />or owed the other, or to accept service of process for the other. Cartegraph is an independent contractor, customarily
<br />engaged in the performance of similar services for other parties.
<br />C. Attorney’s Fees/Legal Proceedings: In the event of any litigation or other proceeding between the parties relating to
<br />this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and other reasonable costs
<br />incurred in connection therewith and in pursuing collection, appeals and other relief to which that party may be
<br />entitled.
<br />D. Export. Customer agrees that the Software, Support, Services and Hosting purchased hereunder will not be exported
<br />directly or indirectly, separately or as part of any system, without first obtaining a license from the U.S. Department of
<br />Commerce or any other appropriate agency of the U.S. Government, as required.
<br />E. Assignment. Customer may not assign, voluntarily or by operation of law, any of its rights or obligations in this
<br />Agreement except with Cartegraph’s prior written consent. This Agreement will be binding on and inure to the benefit
<br />of the parties hereto and their respective successors and permitted assigns.
<br />F. Waiver. The parties’ rights and remedies are separate and cumulative. Neither parties’ waiver nor failure to exercise
<br />in any respect any right or remedy provided in this Agreement is a waiver of any future right or remedy hereunder.
<br />G. Force Majeure. If any cause beyond Cartegraph’s reasonable control prevents Cartegraph from performing under this
<br />Agreement by a given date or time, Cartegraph’s performance will be automatically postponed.
|