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Orange County, NC <br /> <br />On-Premise OnCall Dispatch Implementation <br />Statement of Work 127 <br />3.2.2 Hexagon having primary control of the defense of any actions and negotiations related to <br />the defense or settlement of any Claim, understanding Hexagon may not settle a claim without <br />Customer’s consent if such settlement assigns fault or culpability to Customer; and <br />3.2.3 Customer cooperating fully in the defense or settlement of any Claim. <br />3.3 Hexagon will have no obligation to defend Customer or to pay any resulting costs, damages, or <br />attorneys' fees for any Infringement Claims alleging direct or contributory infringement of the Software <br />Product, Cloud Program, or Service Deliverable (i) by the combination of or integration with a product, <br />process, or system not supplied by Hexagon; (ii) by material alteration by anyone other than Hexagon or <br />its subcontractors; (iii) by use after Customer has been notified of possible infringement; (iv) by use after <br />modifications are provided to Customer; (v) by use after a return for refund as described below is ordered <br />by Hexagon; (vi) if the creation of which was pursuant to specifications provided by Customer; or (vii) by <br />use other than as specified in the Documentation associated with the Software Product. <br />3.4 In connection with any Infringement Claims, Hexagon, at its own expense and option, may either <br />(i) obtain rights for Customer to continue using the allegedly infringing Hexagon supplied item; (ii) replace <br />the item with a non-infringing alternative, or modify the allegedly infringing elements of the item, while <br />maintaining substantially similar software functionality or data/informational content; or (iii) refund to <br />Customer a prorated portion of the license fees paid by Customer for the infringing item(s); provided that <br />proration for perpetually licensed software shall be based on a five (5)-year, straight-line depreciation basis <br />beginning from the initial date of delivery. In the event of a prorated return, Customer will uninstall, cease <br />all use of and return to Hexagon the infringing item(s). <br />3.5 In no event will the indemnification for Infringement Claims apply to any Beta Software, or sample, <br />hot fix, royalty free, or evaluation software delivered pursuant to the SOW. <br />3.6 The terms of this agreement and the GSA contract are subject to North Carolina public records law, <br />as set out in Chapter 132 of the North Carolina General Statutes. Should Hexagon fail to consent to <br />disclosure pursuant to a legitimate records request under these laws, Hexagon agrees to indemnify and <br />hold harmless Orange County and its officers, employees, and agents from all costs, damages and <br />expenses incurred in connection with refusing to disclose the records. <br />4. Dispute Resolution: <br />Neither party may initiate binding arbitration. Any disputes shall be resolved by nonbinding mediation in <br />Hillsborough, North Carolina or within twenty-five (25) miles thereof. If such mediation fails either party <br />may initiate litigation to resolve the dispute. Regardless of the outcome of said litigation each party is <br />responsible for its own costs and fees, including attorneys’ fees. <br />5. Waiver of Jurisdiction <br />Hexagon waives any claim or right to assert that venue of litigation shall lie in Alabama. <br />6. Non Appropriation. Hexagon acknowledges that Orange County is a governmental entity, and the <br />validity of this agreement is based upon the availability of public funding under the authority of its statutory <br />mandate. In the event that public funds are unavailable and not appropriated for the performance of Orange <br />County’s obligations under this Agreement, then this Agreement shall automatically expire without penalty <br />to Orange County immediately upon written notice to the Provider of the unavailability and non- <br />appropriation of public funds. Notwithstanding the above, Orange County will pay Hexagon for all <br />conforming services rendered, and equipment or parts provided, up to the date of termination. <br />7. North Carolina Provisions. Provider shall at all times remain in compliance with all applicable local, <br />state, and federal laws, rules, and regulations including but not limited to all state and federal anti- <br />discrimination laws, policies, rules, and regulations and the Orange County Non-Discrimination Policy and <br />Orange County Living Wage Policy (each Orange County policy is incorporated herein by reference and <br />may be viewed at http://www.orangecountync.gov/departments/purchasing_division/contracts.php.) that <br />are not otherwise inconsistent with the GSA Agreement. Any violation of this requirement is a breach of <br />Docusign Envelope ID: 463E937D-8F02-4D22-9EEA-B2B50627D9E0Docusign Envelope ID: DE681D27-7D55-4FB6-8C51-9394D26FBC9EDocusign Envelope ID: 295A5D15-51E9-4D4A-ABF7-42411BB309FA