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relates to such combination, (e)where Customer continues COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF allegedly infringing activity after being notified thereof or after SUCH DAMAGES AND WHETHER OR NOT SUBJECT TO being informed of modifications that would have avoided the THE INDEMNIFICATION OBLIGATIONS OF COMPANY alleged infringement, or(f)where Customer's use of the Service HEREUNDER. is not strictly in accordance with this Agreement. If,due to a claim of infringement, the Services are held by a court of competent 9. MISCELLANEOUS jurisdiction to be or are believed by Company to be infringing, If any provision of this Agreement is found to be Company may,at its option and expense(i)replace or modify the unenforceable or invalid, that provision will be limited or Service to be non-infringing provided that such modification or eliminated to the minimum extent necessary so that this replacement contains substantially similar features and Agreement will otherwise remain in full force and effect and functionality,(ii)obtain for Customer a license to continue using enforceable. This Agreement is not assignable, transferable or the Service, or (iii)if neither of the foregoing is commercially sublicensable by Customer except with Company's prior written practicable, terminate this Agreement and Customer's rights consent. Company may transfer and assign any of its rights and hereunder and provide Customer a refund of any prepaid,unused obligations under this Agreement without consent. This fees for the Service. Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all 8. LIMITATION OF LIABILITY previous written and oral agreements, communications and other 8.1 Customer acknowledges, understands and agrees that understandings relating to the subject matter of this Agreement, Company utilizes third party hardware, software and hosting and that all waivers and modifications must be in a writing signed solutions in connection with the Services ("Third Party by both parties,except as otherwise provided herein. No agency, Solutions") in order to economically provide the Services to Partnership,joint venture,or employment is created as a result of Customer.Customer recognizes that the quality of the Services is this Agreement and Customer does not have any authority of any dependent upon such Third Party Solutions and that Company kind to bind Company in any respect whatsoever. In any action or does not have nor exercise significant bargaining power with such Proceeding to enforce rights under this Agreement,the prevailing Third Party Solutions so as to reasonably control the Customer's Party will be entitled to recover costs and attorneys' fees. All experience resulting from such Third Party Solutions, and notices under this Agreement will be in writing and will be deemed therefore notwithstanding any other provision of this Agreement to have been duly given when received, if personally delivered; to the contrary, agrees that Company shall not be liable or in when receipt is electronically confirmed, if transmitted by breach of this Agreement to the extent such liability or breach is facsimile or e-mail; the day after it is sent, if sent for next day the result of the acts or omissions of Third Party Solutions or their delivery by recognized overnight delivery service; and upon providers. receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the 8.2 . NOTWITHSTANDING ANYTHING TO THE State of California without regard to its conflict of laws provisions. CONTRARY,EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT 10. CYBERSECURITY INCIDENT,SLA LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, In the event a data breach occurs with respect to Customer Data, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES Company shall immediately notify Customer by telephone in SHALL NOT BE RESPONSIBLE OR LIABLE WITH accordance with the agreed upon security plan or security RESPECT TO ANY SUBJECT MATTER OF THIS Procedures if it reasonably believes there has been a security AGREEMENT OR TERMS AND CONDITIONS RELATED incident. Company shall (1) cooperate with Customer to THERETO UNDER ANY CONTRACT, NEGLIGENCE, investigate and resolve the data breach, (2)promptly implement STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR necessary remedial measures, if necessary, and (3) document OR INTERRUPTION OF USE OR FOR LOSS OR responsive actions taken related to the data breach, including any INACCURACY OR CORRUPTION OF DATA OR COST OF Post-incident review of events and actions taken to make changes PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR in business practices in providing the services,if necessary. TECHNOLOGY OR LOSS OF BUSINESS; (B)FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR Company shall be responsible for the acquisition and operation of CONSEQUENTIAL DAMAGES; (C)FOR ANY MATTER all hardware,software and network support related to the services BEYOND COMPANY'S REASONABLE CONTROL; OR being provided. City shall be responsible for the acquisition and (D)FOR ANY AMOUNTS THAT, TOGETHER WITH operation of all computers and mobile devices used to access the AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, service. The technical and professional activities required for EXCEED THE FEES PAID BY CUSTOMER TO COMPANY establishing, managing and maintaining the environments are the FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 responsibilities of Company. The system shall be available for MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE City's use on a 24/7/365 basis (with agreed-upon maintenance LIABILITY, IN EACH CASE, WHETHER OR NOT downtime).