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Agreement. ES&S also owns all patents, trademarks,
<br />copyrights, trade names and -other proprietary or intellectual
<br />property in, or used in connection with, the aforementioned
<br />Items. The aforementioned items also contain confidential
<br />and proprietary trade secrets of ES&S that are protected by
<br />law and are of substantial value to ES&S. Customer shall
<br />keep the EMS Software and related Documentation free
<br />and clear of all claims, liens and encumbrances and ,shall
<br />maintain all copyright, trademark, patent or other Intellectual
<br />or proprietary rights notice's that. are set forth on. the ES&S'
<br />Equipment the ES&S Software, the Documentation, training
<br />materials and ballots that are provided, and all permitted
<br />(L-mples of the foregoing.
<br />r�TT 0. In-clemnification. To Die fullest extent permitted-Onder
<br />A,OAS' applicable-lawt., Customer shall Indemnify and hold harmless
<br />ES&S from and against any and 611 claims, damages,
<br />amounts paid In settlement and reasonable fees and costs
<br />;3 (Including reasonable attorneys! fees) (collectively "Adverse
<br />Consequences") arising out of or relating to the following:
<br />a. Any claim that any of the EMS Equipment or ES&S
<br />Software Infringes upon any third.party's copyright,
<br />trademark or patent existing as ol"the date hereof (a "Third
<br />Party Infringement Claim") resulting from (I) Customer's
<br />failure to timely or properly Install and We any Update
<br />provided to It by ES&S; (11) the use of any ES&S Equipment
<br />or ES&S Software In corn binAbOn with .other equipment,
<br />hardware or software not meeting ES&S' specifications for
<br />use with such ES&S Equipment or EMS Software; or (ill)
<br />Customer's modification or alteration of any item of ES&S
<br />Equipment or ES&S Software without the Prior written
<br />consent of ES&S.
<br />b. Any clairns by third partes arising :out of or relating to the
<br />use or misuse by Customer. Its Amployees -and any other
<br />persons under, its -authority -or control (rCustomer's
<br />Representatives') of any third party, Items;
<br />c. Personal Injury (including death) or property damage
<br />that is caused by any neillgent or willful act error or
<br />omission of one.or more of Customer's Representatives.' and
<br />d. Customer's election not to receive, or to 'terminate,
<br />Hardware Maintenance Sa!Mees or ES&S Software
<br />Maintenance and 8upporL
<br />ES" shall 460y Customer immediately if it becomes aware
<br />of any claim for which R may be. .6ribitted to .indemnification
<br />under thisSection 10, and hereby gives Customer full and
<br />complete authority, and shall provide such information and
<br />assistance as is necessary (at Customer's expense with
<br />respect to reasonable out-of-pocket costs), to enable
<br />Customer -to defend, compromise orseti
<br />t1dony such claim.
<br />11. Termination. This Agreement may be terminated,
<br />n6t6d, In
<br />T
<br />writing, atan
<br />1.9 y time by either party If the 6ther°party breaches
<br />any material provision hereof and does not curesuch.breach
<br />n
<br />within. 30 days -
<br />after It recelvas written notification thereof
<br />from the non -breaching party,
<br />D
<br />12
<br />.r. Disputes,
<br />a. Payment of Undisputed Amounts. In the -event of
<br />a dispute between the parties regarding (1) a product or
<br />service for which payment has not yet been made to ES&S,
<br />(2) the amount due ES&S for any product or service, or (3)
<br />the due date of any payment, Customer shag nevertheless
<br />pay to EMS when due all undisputed amounts. Such
<br />payment shall not constitute a waiver by Customer or ES&S
<br />of any of its rights and remedies against the other party.
<br />b. Remedies for Past Due Undisputed Payments. If
<br />any undisputed payment to ES&S is past due more than 30
<br />days, ES&S may suspend performance under this
<br />Agreement until such amount is paid. If Customer's
<br />payment is past due for more than 60 days and Is
<br />undisputed, EMS may declare the total Amount remaining
<br />due -under this Agreement to be immediately doe and
<br />payable, enter the premises where the ES&S Equipment Is
<br />located and remove it. Any disputed or undisputodpaymerlit
<br />not paid by Customer to ES&S when due shall bear interest
<br />from the due date at a rate equal to the lesser of one and
<br />one-half percent per month or the maximum amount
<br />permitted by applicable law for each, month or portion thereof
<br />during which It remains unpaid.
<br />13. Assignment. Except In the case of a sale, transfer or
<br />assignment of all or substantially all of the assets of EMS to
<br />a successor who has asserted its intent, to continua the
<br />'business of ES&S, neither party may assign or transfer this
<br />Agreement or assign, subcontract or delegi!W any of Its
<br />rights, duties or obligations hereunder without the odor
<br />written consent of the other partybereto, such consent nott6
<br />be unreasonably withheld or conditioned, not unduly
<br />delayed. ES&S may assign its right to receive payments
<br />under this Agreement to such third patty(ies) as ES&S may
<br />desire without the prior consent of Customer, provided that
<br />ES&S provides written notice evidence stitch
<br />Onclu In4 -nce of ch
<br />d 3
<br />assignment) to Customer thirty (30) days In advance of any
<br />payment(s) so assigned.
<br />14. Cornallance with Laws. In perforating flis obligations
<br />.Or enjoying its rights under this Agreement, each party shall
<br />comply with all applicable laws and regulations. in addition,
<br />ES&S warrants to Customer that, at the time of delivery. the
<br />ES&S Equipment and ES&S Software sold and' licensed
<br />under this Agreement ' will Comply With all applicable
<br />requirements of stateelect - Ion laws and regulailons1hatare
<br />mandatory and
<br />d effective as of the Effective Date and V411
<br />have been certified by the appropriate state authorities for
<br />use in Customer's state.
<br />15. State. ReortMeatigns. In the event that any future
<br />.state certifications or recertificatims am required that are not
<br />otherwise required as a result of any changes or
<br />modifications voluntarily made by ES&S to the ES&S.
<br />Software andfor ES&S Equipment licensed and sold
<br />hereunder, Customer shall be -responsible for:
<br />-rh is iwelemN j+4,0"6 hold ho.cmiess shAi I be or,)ij +v -Hie Mew't, cxuaxed
<br />OLN4 q &8 - OaV Fbrido:
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