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DocuSign Envelope ID:77803446-26E8-4424-B3DD-15F947931AE8 <br />4.10 Performance of Services. BCS represents Indemnified Party to participate in such settlement or <br />and warrants that all services provided by BCS to defense through counsel chosen by Indemnified Party, <br />Licensee, if any, (including without limitation any provided that the fees and expenses of any such <br />installation, support, training, and Maintenance counsel so chosen by Indemnified Party shall be borne <br />Services) will be performed in a timely, competent,by Indemnified Party,and(ii)Indemnifying Party shall <br />professional,and workmanlike manner,using qualified promptly reimburse Indemnified Party for the full <br />employees in conformity with industry best practices.amount of any loss resulting from such claim and all <br />In the event that BCS will be providing development related expense incurred by Indemnified Party. So <br />services, such services shall be performed pursuant to long as Indemnifying Party is reasonably contesting <br />the terms of a Development Schedule in Exhibit B. any such claim in good faith, Indemnified Party shall <br />not pay or settle any such claim. If Indemnifying Party <br />4.11 BCS Disclaimer of All Other Warranties.does not notify Indemnified Party within twenty (20) <br />Except as otherwise expressly stated in this days after receipt of Indemnified Party's notice of a <br />Agreement, BCS makes no representations or claim of indemnity under this Agreement that <br />warranties concerning the Licensed Products or the Indemnifying Party elects to undertake the defense of <br />services provided hereunder. THE FOREGOING such claim, Indemnified Party shall have the right to <br />WARRANTIES ARE IN LIEU OF,AND LICENSOR contest, settle or compromise the claim in the exercise <br />HEREBY EXPRESSLY DISCLAIMS, ALL OTHER of Indemnified Party's exclusive discretion, which <br />WARRANTIES, BOTH EXPRESS AND IMPLIED, shall be at the expense of Indemnifying Party. <br />INCLUDING BUT NOT LIMITED TO THE Indemnifying Party shall not,without the prior written <br />IMPLIED WARRANTIES OF consent of Indemnified Party,enter into any settlement <br />MERCHANTABILITY AND OF FITNESS FOR A agreement on terms that would diminish the rights <br />PARTICULAR PURPOSE. provided to Indemnified Party or increase the <br />obligations assumed by Indemnified Party under this <br />5. Indemnification.Agreement. <br />5.1 Indemnification by BCS. BCS shall defend, 5.3 Excepted Claims. BCS shall have no <br />indemnify and hold harmless Licensee and its affiliates obligation to indemnify Licensee under Section 5.1 to <br />and their respective officers, directors, employees,the extent any claim of Intellectual Property <br />agents, lawyers and representatives (collectively the infringement is based on (i) use of Licensed Products <br />Licensee Indemnified Parties") from and against any modified by Licensee if such infringement would have <br />and all damages,losses, liabilities,judgments, awards,been avoided by the use of the unmodified version of <br />costs, and expenses of any nature whatsoever,Licensed Products that BCS provided to Licensee; (ii) <br />including reasonable attorney's fees and court costs,use of the Licensed Products in connection with any <br />incurred by any Licensee Indemnified Party arising out third party software or hardware not in accordance <br />of or relating to:(i)any loss or damage to real property <br />with Appendix D; (iii)use of the Licensed Products in <br />or tangible personal property, or any bodily injury,a manner other than that set forth in the <br />including death,to the extent caused by the intentional Documentation; or (iv) specifications provided by <br />or grossly negligent acts or omissions of BCS; or Licensee to BCS. The exception provided in this <br />ii)claims, actions, or proceedings alleging Section 5.3 will not apply to the extent they conflict <br />infringement by Software of any United States with applicable law,including Article V, Section 4(3) <br />Intellectual Property rights of any third party. <br />of the North Carolina Constitution. <br />5.2 Indemnification Procedure. If a claim is 6. Confidential Information. <br />made against a Party (the "Indemnified Party") for <br />which the other Party (the "Indemnifying Party") is 6.1 Confidential Information. Both parties <br />obligated to indemnify Indemnified Party, and if recognize and agree to adhere to North Carolina's <br />Indenmified Party intends to seek indemnity with public records law, set forth at Chapter 132 of the <br />respect to such claim, Indemnified Party shall North Carolina General Statutes. Each Party shall use <br />promptly notify Indemnifying Party in writing of such at least the same degree of care in safeguarding the <br />claim. Indemnifying Party shall have twenty(20)days other Party's Confidential Information as it uses in <br />after receipt of the above-mentioned notice to notify safeguarding its own Confidential Information, but in <br />Indemnified Party in writing of its intent to undertake,no event shall a Party use less than reasonable <br />conduct and control, through counsel of Indemnifying diligence and care. Each Party hereby agrees that, <br />Party's own choosing (subject to the consent of except as required by law, (i) during the term of this <br />Indemnified Party, such consent not to be Agreement and at all times thereafter it shall not <br />unreasonably withheld) and at Indemnifying Party's commercialize or disclose the other Party's <br />expense, the settlement or defense, or both, of such Confidential Information to any person or entity, <br />claim, and Indemnified Party shall cooperate with except to its own Personnel, and in the case of <br />Indemnifying Party in connection with such efforts;Licensee, the Personnel of Licensee Affiliates <br />provided that: (i)Indemnifying Party shall permit collectively, the "Representatives") having a need to <br />know; (ii) it will not use or permit its Representatives <br />4 <br />CORE/0804998.0008/128897050.2 <br />DocuSign Envelope ID: 3A3B749D-89FA-4DD4-AB4B-396224600A6A