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08
City of Pleasanton
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CITY CLERK
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AGENDA PACKETS
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2016
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060716
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08
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11/30/2016 1:10:09 PM
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6/1/2016 8:52:47 AM
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CITY CLERK
CITY CLERK - TYPE
AGENDA REPORT
DOCUMENT DATE
6/7/2016
DESTRUCT DATE
15Y
DOCUMENT NO
08
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9.7 Additional Infringement Obligations. If PerfectMlND receives any knowledge <br /> of any Claim in respect of §9.4 or any circumstances in which a Claim in respect of such <br /> provision is threatened or reasonably anticipated, it will, as soon as reasonably practicable, (a) <br /> procure, at its expense, the right for Customer to use the Platform or the Work Product, as the <br /> case may be, or such infringing part thereof; (b) replace, at its expense, the Platform or the Work <br /> Product, as the case may be, or such infringing part thereof, with material of comparable <br /> functionality that does not breach this Agreement; (c) if the removal of such infringing part of <br /> the Platform or the Work Product, as the case may be, would not be a breach of this Agreement, <br /> remove such infringing part of the Platform; or (d) terminate this Agreement and refund to <br /> Customer a pro rata portion of the Platform use fees prepaid by Customer for the period during <br /> which the Agreement is terminated. <br /> 9.8 Conduct of Indemnities. Each party acknowledges that the indemnifying party <br /> will be given complete authority for the defence or settlement of Claims indemnified hereunder, <br /> on the understanding that, in all events, the indemnified party will have the right (at its own <br /> expense) to participate in such defence or compromise through counsel of its choosing. An <br /> indemnifying party's obligations to provide an indemnity hereunder will be conditional upon (a) <br /> the indemnified party notifying the indemnifying party as soon as reasonably practicable after <br /> receiving notice of a Claim, (b) the indemnified party providing such information and assistance <br /> as reasonably requested by the indemnifying party, and (c) the indemnified party not <br /> compromising or settling the Claim without the indemnifying party's prior written consent, such <br /> consent not to be unreasonably withheld, conditioned or delayed. <br /> 9.9 EXCLUSION AND LIMIT OF LIABILITY. EXCEPT IN RELATION TO <br /> THE INDEMNITIES PROVIDED UNDER §9.4 AND §9.6 OR IN RELATION TO A <br /> BREACH OF THIS AGREEMENT WITH RESPECT TO CONFIDENTIAL INFORMATION, <br /> (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, <br /> INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND <br /> WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, <br /> TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING (WITHOUT <br /> LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF <br /> PROFITS OR OF CONTRACTS, LOSS OF BUSINESS, LOSS OF MANAGEMENT OR <br /> OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF <br /> THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF OR COULD HAVE <br /> FORESEEN SUCH CLAIMS, AND (B) THE ENTIRE LIABILITY OF EACH PARTY TO <br /> THE OTHER PARTY FOR DIRECT DAMAGES FROM ANY CAUSE WHATSOEVER, <br /> AND REGARDLESS OF THE FORM OF ACTION OR THE CAUSE OF ACTION, <br /> WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), STRICT <br /> LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH OR <br /> OTHERWISE IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE <br /> FEES ACTUALLY PAID TO PERFECTMIND BY CUSTOMER DURING THE THREE (3) <br /> MONTHS PRECEDING THE CIRCUMSTANCES IN WHICH SUCH LIABILITY ARISES <br /> (EXCEPT THAT NOTHING IN THIS PROVISION WILL LIMIT CUSTOMER'S <br /> OBLIGATION TO PAY THE FEES PROVIDED IN PART 4 TO PERFECTMIND). <br /> 17 <br />
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