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<br />- 7 - <br />resulting from, or attributable to any and all of their <br />individual acts or omissions to the extent allowable <br />by law. <br /> <br />9.2 Remedies. As to Software which is subject <br />to a claim of infringement or misappropriation <br />specified in Section 9.1, Farragut may (a) obtain <br />the right of continued use of the Software for <br />Customer or (b) replace or modify the Software to <br />avoid the claim. If neither alternative is available, <br />then, at the request of Farragut, any applicable <br />Software license will terminate, Customer will stop <br />using the Software, and Customer will return to <br />Farragut and/or destroy (including, without <br />limitation, deleting all electronic copies in a manner <br />that cannot be recovered), at Farragut’s option, all <br />copies of the applicable Software, and will certify in <br />writing to Farragut that such return and destruction <br />has been completed. Upon Farragut’s receipt of <br />such certification, Farragut will give to Customer a <br />credit for the price paid to Farragut, less a <br />reasonable offset for use and obsolescence. <br /> <br />9.3 Exclusions. Farragut will not defend or <br />indemnify Customer, and Farragut will not be liable <br />to Customer, if any claim of infringement or <br />misappropriation: (a) results from Customer’s <br />design, alteration, modification, maintenance or <br />support of Software, (b) results from the <br />combination, operation or use of any Software <br />supplied hereunder with Customer or third party <br />equipment, devices or software to the extent such <br />a claim would have been avoided if the Software <br />were not used in such combination, (c) relates to <br />any Customer products or services, or third party <br />products or third party services, (d) failure of <br />Customer to use Software Maintenance Releases <br />provided by Farragut to avoid infringement; or (d) <br />arises from Customer-specified customization <br />work undertaken by Farragut or its designees in <br />response to Customer specifications. <br /> <br />9.4 EXCLUSIVE REMEDIES. THIS SECTION <br />9 STATES THE ENTIRE LIABILITY OF <br />FARRAGUT AND CUSTOMER’S SOLE AND <br />EXCLUSIVE REMEDIES FOR INFRINGEMENT <br />AND TRADE SECRET MISAPPROPRIATION. <br /> <br />10. Dispute Resolution. <br /> <br />10.1 Disputes and Demands. The <br />parties agree to attempt to resolve any controversy, <br />claim or dispute (“Dispute”) arising out of or relating <br />to this Agreement by means of good faith discussion <br />and negotiation. In the event that a Dispute cannot <br />be resolved at the project level, then designated <br />senior executives of the parties shall meet and enter <br />into further good faith settlement negotiations. If <br />such senior executives cannot resolve the Dispute <br />within thirty (30) days, the parties agree to try in good <br />faith to settle the dispute by mediation administered <br />by a mutually agreed third-party mediator before <br />resorting to arbitration. If the parties do not reach <br />such solution within a period of sixty (60) days after <br />engagement of a mediator, then, upon notice by <br />either party to the other, any Dispute shall be finally <br />settled by binding arbitration administered by a single <br />arbitrator under the rules of the American Arbitration <br />Association. The venue for any mediation or <br />arbitration shall be in Durham County, North <br />Carolina. This Agreement shall be interpreted, <br />construed, and governed by the laws of the State of <br />North Carolina, without regard to conflict of law <br />provisions. <br /> <br />10.2 Time Limit. Neither mediation <br />under this section nor any legal action, regardless <br />of its form, related to or arising out of this <br />Agreement may be brought more than two (2) <br />years after the cause of action first accrued. <br /> <br />11. General Provisions. <br /> <br />11.1 Entire Agreement. This <br />Agreement and the attachments, schedules and <br />exhibits hereto are the entire agreement and <br />supersede all prior negotiations and oral <br />agreements. Farragut has made no <br />representations or warranties with respect to this <br />Agreement, the Software, Software support or any <br />other services that are not included herein. This <br />Agreement may not be amended or waived except <br />in writing signed by an officer of the party to be <br />bound thereby. There are no oral agreements <br />between the parties. <br /> <br />11.2 Preprinted Forms. The use of <br />preprinted forms in connection with this Agreement <br />is for convenience only and all preprinted terms <br />and conditions stated thereon are void and of no <br />effect. If any conflict exists between this <br />Agreement and any terms and conditions on a <br />purchase order, acknowledgment or other <br />preprinted form, the terms and conditions of this <br />Agreement will govern and the conflicting terms <br />and conditions in the purchase order, <br />acknowledgment or preprinted form will be void <br />and of no effect. The terms and conditions of this <br />Agreement, including but not limited to this Section <br />11.2, cannot be amended, modified or altered by <br />any conflicting preprinted terms or conditions in a <br />preprinted form. <br />DocuSign Envelope ID: 7DCC2B8A-E44C-4172-BF52-8A8B6D647BED