|
DocuSign Envelope ID:7DCC2B8A-E44C-4172-BF52-8A8B6D647BED
<br /> 39
<br /> TRADE OR BY COURSE OF DEALING. ALL WARRANTIES RELATING TO THE NCPTS
<br /> SOFTWARE SHALL BE AS SET FORTH IN THE LICENSE AGREEMENT.
<br /> 8. Liability and Insurance
<br /> 8.1. All liability arising under or relating to the subject matter of this Agreement, whether
<br /> under theory of contract, tort (including negligence), or otherwise, shall be limited to direct
<br /> damages. Neither party, including its officers, directors, employees, agents, representatives, and
<br /> subcontractors, shall have any liability to the other party or to any third party for any incidental,
<br /> punitive, indirect, special or consequential damages, including but not limited to lost profits, loss of
<br /> data, cost of recreating lost data, interruption of business, or costs of procurement of substitute
<br /> goods or services, even if advised of the possibility of such damages, whether under theory of
<br /> warranty, contract, tort(including negligence), strict liability or otherwise. The aggregate liability of
<br /> Farragut under this Agreement shall not exceed the total fees paid by County to Farragut with
<br /> respect to the annual term at issue.
<br /> 8.2. Farragut will carry and maintain throughout the period of this Agreement, at Farragut'
<br /> sole expense, insurance including specifically general liability, and if applicable, worker's
<br /> compensation insurance,to cover the obligations of Farragut set forth herein,or the acts of Farragut
<br /> performed hereunder. Certificates of such insurance shall be furnished by Farragut to County
<br /> within ten (10) business days after execution of this Agreement. Such certificates shall require the
<br /> insurer issuing the underlying policy to provide County with a minimum of thirty (30) days notice
<br /> prior to modification or cancellation of said policy. Farragut agrees that such insurance shall be
<br /> primary, regardless of any other insurance coverage,which County may procure for its own benefit.
<br /> 8.3. The allocations of liability in this Section represent the agreed and bargained-for
<br /> understanding of the parties and Farragut'compensation for the Services reflects such allocations.
<br /> 9. Dispute Resolution
<br /> 9.1. The parties agree to attempt to resolve any controversy, claim or dispute ("Dispute")
<br /> arising out of or relating to this Agreement by means of good faith discussion and negotiation. In
<br /> the event that a Dispute cannot be resolved at the project level, then designated senior executives
<br /> of the parties shall meet and enter into further good faith settlement negotiations. If such senior
<br /> executives cannot resolve the Dispute within thirty (30) days, the parties agree to try in good faith
<br /> to settle the dispute by mediation administered by a mutually agreed third—party mediator before
<br /> resorting to litigation. Any legal proceeding arising out of or relating to this Agreement or its alleged
<br /> breach will be brought solely in the a state or federal court in Durham Country, to the exclusion of
<br /> any other forum, and the parties hereby expressly agree and submit to the exclusive jurisdiction of
<br /> such courts.
<br /> 9.2. This Agreement shall be interpreted, construed, and governed by the laws of the
<br /> State of North Carolina, without regard to conflict of law provisions.
<br /> 10. Miscellaneous
<br /> 10.1. During the term of this Agreement and for a period of one (1) year following the
<br /> termination or expiration of this Agreement for any reason, neither party shall employ nor offer or
<br /> seek to employ, either directly or indirectly, any person who, at that time or within the last six (6)
<br /> months, was either employed or engaged as an independent contractor by the other party.
<br /> 10.2. The parties are and intend to be independent contractors with respect to the
<br /> services contemplated hereunder. Farragut agrees that neither it nor its employees or contractors
<br /> shall be considered as having an employee status with County. All persons employed by Farragut
<br /> to perform Services shall be subject to the exclusive direction and control of Farragut. No form of
<br /> joint employer,joint venture, partnership, or similar relationship between the parties is intended or
<br /> Page 4
<br />
|