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END USERS AT ALL TIMES WITHOUT INTERRUPTION, (iii) THE PRODUCTS ARE <br />COMPATIBLE WITH ANY SOFTWARE, SERVICE OR HARDWARE UTILIZED BY <br />CLIENT OR END USERS EXCEPT AS EXPRESSLY APPROVED IN WRITING BY <br />CHMURA; OR (iv) THAT ANY DATA, INCLUDING CHMURA DATA OR DATA <br />CONTAINED IN ANY PRODUCT, IS SUFFICIENT TO MEET CLIENT'S OR ANY END <br />USER'S BUSINESS, EDUCATIONAL OR TRAINING REQUIREMENTS. <br />(b) LIMITATION OF LIABILITY. IN NO EVENT SHALL CHMURA BE LIABLE <br />FOR DAMAGES UNDER THIS AGREEMENT EXCEEDING THE ANNUAL FEES PAID OR <br />PAYABLE BY CLIENT TO CHMURA UNDER THIS AGREEMENT FOR THE THEN- <br />CURRENT TERM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER <br />PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE <br />DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS) REGARDLESS OF <br />WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT <br />LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR <br />OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. <br />7. Indemnification. <br />(a) By Chmura. Chmura shall indemnify, defend and hold harmless Client and its <br />Affiliates and their respective officers, directors, employees, and agents (the “Client Indemnitees”) <br />from and against any loss, damages, expenses, and costs (including reasonable attorney's fees and <br />court costs) (collectively, “Losses”) suffered or incurred by the Client Indemnitees arising out of <br />any threatened or actual claim, action or proceeding (“Claim”) that the Products or Client <br />Indemnitees' use thereof infringes a patent or copyright, or misappropriates a trade secret or <br />otherwise violates the rights of a third party. The foregoing obligation does not apply to the extent <br />that the alleged infringement or misappropriation arises from: (i) Client Systems or Client's data <br />or materials; (ii) third-party materials; (iii) access to or use of the Products in combination with <br />any hardware, system, software, network, or other materials or service not provided by Chmura or <br />specified for Client's use in the Documentation; (iv) modification of the Products other than by or <br />on behalf of Chmura; (v) failure to timely implement any modification, upgrades, replacements, <br />or enhancements made available to Client by or on behalf of Chmura; or (vi) any allegation of <br />facts that, if true, would constitute Client's breach of this Agreement. Client shall promptly notify <br />Chmura in writing of any Claim for which Client believes it is entitled to be indemnified pursuant <br />to this Section 7(a). Chmura shall control the defense of any such Claim and, at its discretion, may <br />enter into a stipulation of discontinuance and settlement thereof; provided that Chmura shall not <br />enter any settlement that requires anything other than the payment of money without Client's prior <br />written approval. Client shall cooperate, at Chmura's expense, with Chmura in any such defense <br />and shall make available to Chmura all those persons, documents and things required by Chmura <br />in the defense of any such Claim. Client may, at its expense, also assist in such defense with <br />counsel of its own choosing. <br />(b) Mitigation. If Chmura is required to indemnify the Client Indemnitees pursuant to <br />Section 7(a) above, Chmura shall, at its option, either procure for Client the right to continue using <br />the respective Product(s) or modify the respective Product(s) to permit Client to exercise its rights <br />hereunder. If the foregoing options are not available, Chmura may terminate this Agreement and <br />DocuSign Envelope ID: A7B8C585-8C5D-44A8-9CAE-91844CA6A48A