2009-097 IT - Intelligent Information Systems, Inc. - Addendum to Software Maintenance and Support Agreement

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for IIS to perform the Services. 7.3. Each party represents that it has received all necessary authority and approvals to enter into this Agreement, and that the negotiation and performance of this Agreement is not in conflict with any other agreement entered into by such party. 7.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING. ALL WARRANTIES RELATING TO THE NCPTS SOFTWARE SHALL BE AS SET FORTH IN THE LICENSE AGREEMENT. 8. Liability and Insurance 8.1. All liability arising under or relating to the subject matter of this Agreement, whether under theory of contract, tort (including negligence), or otherwise, shall be limited to direct damages. Neither party, including its officers, directors, employees, agents, representatives, and subcontractors, shall have any liability to the other party or to any third party for any incidental, punitive, indirect, special or consequential damages, including but not limited to lost profits, loss of data, cost of recreating lost data, interruption of business, or costs of procurement of substitute goods or services, even if advised of the possibility of such damages, whether under theory of warranty, contract, tort (including negligence), strict liability or otherwise. The aggregate liability of IIS under this Agreement shall not exceed the total fees paid by County to IIS with respect to the annual term at issue. Nothing in this Agreement creates an obligation by County to pay any damages in excess of those amounts legally available to satisfy County's obligations under this Agreement. No section of this Agreement is intended to create a waiver of County's rights or privileges as a sovereign entity. 8.2. IIS will carry and maintain throughout the period of this Agreement, at IIS' sole expense, insurance including specifically general liability, and if applicable, worker's compensation insurance, to cover the obligations of IIS set forth herein, or the acts of IIS performed hereunder. Certificates of such insurance shall be furnished by IIS to County within ten (10) business days after execution of this Agreement. Such certificates shall require the insurer issuing the underlying policy to provide County with a minimum of thirty (30) days notice prior to modification or cancellation of said policy. IIS agrees that such insurance shall be primary, regardless of any other insurance coverage, which County may procure for its own benefit. 8.3. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and IIS' compensation for the Services reflects such allocations. 9. Dispute Resolution 9.1. The parties agree to attempt to resolve any controversy, claim or dispute ("Dispute") arising out of or relating to this Agreement by means of good faith discussion and negotiation. In the event that a Dispute cannot be resolved at the project level, then designated senior executives of the parties shall meet and enter into further good faith settlement negotiations. If such senior executives cannot resolve the Dispute within thirty (30) days, the parties agree to try in good faith to settle the dispute by mediation administered by a mutually agreed third-party mediator before resorting to litigation. Any legal proceeding arising out of or relating to this Agreement or its alleged breach will be brought solely in the a state court in Orange Country, to the exclusion of any other forum, and the parties hereby expressly agree and submit to the exclusive jurisdiction of such courts. Page 4