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10. CONFIDENTIALITY. shall consult with CUSI how the new ownership will work within the
<br /> restrictions of this Agreement. CUSI shall have the right to assign this
<br /> 10.1 Confidentiality Obligations. Each party agrees to maintain Agreement to any successor to its business or assets to which this
<br /> any Confidential Information received from the other party in confidence Agreement relates, whether by merger, sale of assets, sale of stock,
<br /> using the same degree of care that it uses to maintain its own reorganization or otherwise.
<br /> confidential information in confidence, but in no event not less than
<br /> reasonable care. The recipient of any Confidential Information shall not 12.2 Notices. Any notice required or permitted by this Agreement
<br /> disclose any Confidential Information to any third party without prior will be in writing and will be deemed effective upon receipt, when sent by
<br /> written approval of the disclosing party or use such Confidential confirmed email or when delivered in person or mailed by first class,
<br /> Information for any purpose not contemplated by this Agreement. The registered or certified mail, postage prepaid, to the address of the party
<br /> foregoing restrictions shall not apply to any information for which the specified in this Agreement or such other address as such party may
<br /> receiving party can document: (a) was already lawfully known to the specify in writing.
<br /> receiving party at the time of disclosure by the disclosing party; (b) is 12.3 Governing Law and Arbitration. This Agreement will be
<br /> disclosed to the receiving party by a third party who had the right to governed by and interpreted in accordance with the laws of the State of
<br /> make such disclosure without any confidentiality restrictions; (c) is, or Delaware, without reference to its choice of laws rules. The United
<br /> through no fault of the receiving party has become, generally available to Nations Convention on Contracts for the International Sale of Goods
<br /> the public; or (d) is independently developed by the receiving party does not apply to this Agreement. Any dispute arising out of or relating
<br /> without access to, or use of, the disclosing party's Confidential to this Agreement other than a dispute concerning a party's Confidential
<br /> Information. In addition, the receiving party may disclose Confidential Information or intellectual property rights shall be resolved solely by final
<br /> Information of the other party to the extent required by applicable law or and binding arbitration as follows. Unless the parties otherwise agree,
<br /> regulation; provided that the party required to make such disclosure the arbitration shall be conducted in Wilmington, Delaware before a
<br /> gives the other party prompt written notice and sufficient opportunity to single arbitrator. The arbitrator shall have relevant knowledge and /or
<br /> object to such disclosure, or to request confidential treatment. experience in software licensing and commercial transactions and shall
<br /> 10.2 Return of Confidential Information. The receiving party will be jointly selected and mutually approved by the parties or, if the parties
<br /> return to the disclosing party or destroy all Confidential Information of the are unable to agree, shall be appointed by the American Arbitration
<br /> disclosing party in the receiving party's possession or control and Association ('AAA The arbitration shall be conducted in accordance
<br /> permanently erase all electronic copies of such Confidential Information with the AAA's rules of commercial arbitration. The parties initially shall
<br /> promptly upon the written request of the disclosing party upon the share equally the fees and expenses of the arbitration. However, the
<br /> expiration or termination of the Agreement. The receiving party will prevailing party (if applicable and as determined by the arbitrator) shall
<br /> certify in writing signed by an officer of the receiving party that it has fully be entitled to recover from the non prevailing party all such tees and
<br /> complied with its obligations under this Section 10.2. expenses (including without limitation reasonable attorneys' fees). Any
<br /> arbitration decision so rendered shall be final and binding, and judgment
<br /> 11. TERM AND TERMINATION thereon may be entered in any court of competent jurisdiction.
<br /> 11.1 Term. The term of the Agreement will begin on the Effective 12.4 Waivers. All waivers must be in writing. Any waiver or failure
<br /> Date and will continue unless earlier terminated by either party as to enforce any provision of the Agreement on one occasion will not be
<br /> provided in Section 11.2. deemed a waiver of any other provision or of such provision on any other
<br /> 11.2 Termination. Either party may terminate the Agreement if the occasion.
<br /> other party breaches any material provision of the Agreement and does 12.5 Severability. If any provision of the Agreement is
<br /> not cure such breach within thirty (30) days after receiving written notice unenforceable, such provision will be changed and interpreted to
<br /> thereof. accomplish the objectives of such provision to the greatest extent
<br /> 11.3 Effects of Termination. Upon termination of the Agreement possible under applicable law and the remaining provisions will continue
<br /> for any reason: (a) any amounts owed to CUSI under this Agreement in full force and effect.
<br /> before such termination will be immediately due and payable; (b) all 12.6 Force Majeure. No party shall be liable for failure or delay in
<br /> licensed rights granted in the Agreement will immediately cease to exist; performing its obligation (other than payment of money) for causes
<br /> and (c) Licensee must promptly discontinue all use of the Licensed beyond its reasonable control.
<br /> Software, erase all copies of the Licensed Software from Licensee's
<br /> computers, and return to CUSI or destroy all copies of the Licensed 12.7 Entire Agreement; Counterparts. This Agreement, together
<br /> Software and Documentation on tangible media in Licensee's with any Exhibits and related Sales Orders, constitutes the entire
<br /> possession. agreement between the parties regarding the subject hereof and
<br /> supersedes all prior or contemporaneous agreements, understandings,
<br /> 11.4 Survival. Sections 1, 2.4, 6.3, 6.4, 7.2, 8, 9, 10, 11.3, 11.4 and communication, whether written or oral. This Agreement shall not
<br /> and 12, together with any accrued payment obligations, will survive be modified except by a subsequently dated written amendment signed
<br /> expiration or termination of the Agreement for any reason. by an officer of CUSI and a duly authorized representative of Licensee.
<br /> 12. GENERAL. This Agreement may be executed in counterparts, which taken together
<br /> shall form one legal instrument.
<br /> 12.1 Assignment. Licensee may not assign or transfer, by
<br /> operation of law, merger or otherwise, any of its rights under the
<br /> Agreement (including its licenses with respect to the Licensed Software)
<br /> to any third party without CUSI's prior written consent. Any attempted
<br /> assignment or transfer in violation of the foregoing will be null and void.
<br /> In the event of a change of control of Licensee, Licensee shall provide
<br /> CUSI with prior written notice of such intended change of control and
<br /> IN WITNESS WHEREOF, the parties by their authorized representatives have entered into this Agreement as of the Effective Date.
<br /> CONTINENTAL UTILITY SOLUTIONS, INC. LICENSEE: CITY OF PLEASANTON
<br /> Signed: Signed:
<br /> Name: Michael F Guerriero Name: Nelson Fialho
<br /> Title: President Title: City Manager
<br /> Date: Date:
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