2011-217 - Laserfiche WebLink

Home Browse Search

FIRST ADDENDUM EXHIBIT A To Agreement between Colossus , Incorporated , d/ b/a InterAct Public Safety Systems and Indian River County , Florida REGARDLESS OF WHETHER SUCH DAMAGES ARE ASSERTED TO ARISE OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION , NEGLIGENCE , STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE . NOTWITHSTANDING THE FORM ( E . G . , CONTRACT, TORT OR OTHERWISE ) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL INTERACT OR ITS SUPPLIERS BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED , IN THE AGGREGATE , THE FOLLOWING FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES : ( I ) WITH RESPECT TO EQUIPMENT, THE PURCHASE PRICE PAID BY CUSTOMER FOR THE EQUIPMENT THAT GAVE RISE TO SUCH DAMAGES OR LOSSES ( II ) WITH RESPECT TO SOFTWARE , THE AMOUNT OF LICENSE FEES PAID BY CUSTOMER FOR THE SOFTWARE THAT GAVE RISE TO SUCH DAMAGES OR LOSSES ; AND ( III ) WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER , THE AMOUNT OF FEES PAID FOR THE SERVICES THAT GAVE RISE TO SUCH DAMAGES OR LOSSES . EXCEPT WITH REGARD TO PAYMENTS DUE INTERACT, NEITHER PARTY WILL BE LIABLE FOR ANY DELAYS OR FAILURES IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL THAT COULD NOT BE AVOIDED BY ITS EXERCISE OF DUE CARE , 13 . Term and Termination . The term of this Agreement will commence upon the Effective Date and shall continue until terminated pursuant to the provisions hereof ( such period , the "Term " ) . In addition to any termination or expiration provision set forth in any Order Form or addendum hereto , InterAct may suspend performance or terminate this Agreement or any individual Order Form or Statement of Work immediately if : ( i ) Customer breaches any material term of this Agreement or any Order Form or Statement of Work and fails to cure such breach within thirty ( 30 ) days ( 10 days in the case of non - payment ) thereafter; ( ii ) Customer becomes insolvent or otherwise fails to pay its debts to InterAct or to any third party when they become due in the ordinary course of business ; or ( iii ) bankruptcy or receivership proceedings are initiated by or against Customer . Provided that there are no unfulfilled Services obligations or payment obligations , either party may terminate this Agreement by providing the other party with sixty ( 60 ) days prior written notice thereof. If this Agreement expires or terminates for any reason : ( a ) all amounts due or to become due hereunder will immediately be due and payable to InterAct ; and ( b ) Customer will delete , destroy or return to InterAct at its option all copies and partial copies of any Confidential Information , and certify that it has done so by an officer's affidavit . Paragraphs 7 , 81 12 and 14 of this Agreement Provided that this Agreement is not terminated by InterAct on account of an uncured breach by Customer of a material term of this Agreement or any Order Form or Statement of Work , Paragraphs 2 and 9 ( g ) will survive any expiration or termination hereof. For the avoidance of doubt , the termination of this Agreement shall not operate to terminate any Order Forms or SOWs that have been executed between InterAct and any of Customer's Affiliates , nor shall the termination hereof have any effect on the incorporation of the terms hereof into any such Order Forms and SOWs . 14 . Alternative Dispute Resolution Procedures and Arbitration . a . If there shall be any dispute between Customer and InterAct arising out of this Agreement or any Order Form or SOW executed pursuant hereto , or the performance or nonperformance hereof or thereof, the parties shall use reasonable efforts to resolve such dispute by mutual communication and negotiation before resorting to arbitration as provided herein . As a condition to the commencement of an arbitration proceeding as hereinafter provided for, one party shall first notify the other party in writing of the nature of the dispute and of its intention to resort to arbitration if the dispute is not otherwise resolved , and offer in writing to have one of its representatives who has authority to resolve the dispute meet in person with a representative of the other party who also has authority to resolve the dispute , at the other party 's principal office or another mutually acceptable location , at a mutually convenient time not less than 7 nor more than 20 days after the date of such offer, to attempt to resolve the dispute . If, but only if, ( i ) the other party does not accept such offer within 7 days after it is received or deemed received by the other party , or ( ii ) the offer having been accepted by such other party within such time , the meeting does not occur within 20 days ( or such later date to which the parties may mutually agree in writing to extend such time ) after the offer was received or deemed received by the other party , or ( iii ) the offer having been accepted and the meeting having been held within the required times , the parties nevertheless fail to resolve the dispute within 5 days following such meeting ( or such later date to which the parties may mutually agree in writing to extend such time ) , then either party may commence an arbitration proceeding to resolve the dispute , in accordance with the following provisions of this Section . b . Subject to first complying with the procedures and meeting the conditions to commencement of arbitration set forth in subsection ( a ) above , any dispute between Customer and InterAct arising out of this Agreement or any Order Form or SOW executed pursuant hereto or the performance or nonperformance hereof or thereof, shall , upon the demand of either party , be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration InterAct Public Safety Systems 7 Master Purchase , License & Services Agreement v3 . 0 ( 2011 -05-06 ) FCF M-0011 - 1