Opening of Proposals - Utility Billing System - Systems & Software, Inc. - Part 2

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S&S shall have no liability hereunder if the Customer has modified the Application Software in any manner without the prior written consent of S&S. The foregoing states S&S' entire liability, and the Customer's exclusive remedy, with respect to any claims of infringement of any copyright, patent, trade secret, or other property interest rights relating to the Information System, or any part thereof, or use thereof. I. The warranties contained in this Section 8 are in lieu of all other warranties, express or implied. S&S' express warranties shall not be enlarged, diminished or affected by, and no obligations or liabilities shall arise out of, S&S' rendering of technical or other advice or service in connection with the Third Party Software, Hardware and any other products. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, S&S DISCLAIMS AND EXPRESSLY WAIVES ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE WITH RESPECT TO THE GOODS OR SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY SET OUT HEREIN. 4. SOURCE CODE ESCROW Upon Customer request throughout the Term, S&S shall supply a sealed Source Code tape for the Application Software (including any Upgrades) licensed hereunder. In such event, the sealed Source Code tape shall be provided to an escrow agent pursuant to an escrow agreement mutually agreeable to the parties. Customer shall be responsible for all fees payable to the escrow agent or otherwise incurred as a result of the escrow agreement. The escrow agreement shall specify that the Source Code may be made accessible to the Customer only in the event that S&S (a) whether directly or through a successor or affiliate, shall cease to be in the software business, (b) upon no less than sixty (60) days written notice (in addition to any notice requirement set forth in Section I I(B) refuses to fulfill its support obligations under this Agreement, or (c) should be declared bankrupt or insolvent by a court of competent jurisdiction. The Source Code supplied pursuant to this Section shall be subject to each and every restriction on use and disclosure set forth in this Agreement, and the Customer acknowledges that the Source Code and its associated documentation is the property of S&S and will use its best efforts to prevent unauthorized use or disclosure of the Source Code. 10. CONFIDENTIALITY A. S&S and Customer shall each hold the other's Confidential Information in confidence, Neither party shall make the other's Confidential Information available in any form to any third party or use the other's Confidential Information for any purpose other than as specified in this Agreement. Information shall not constitute Confidential Information if it is publicly known or in the public domain through no breach of this Agreement by Customer or S&S. Neither party's obligations of non -disclosure and non-use shall extend to information that is required to be disclosed or requested in connection with any judicial or quasi-judicial proceeding, including, but not limited to, any administrative proceedings or public records requests, provided the disclosing party shall give the other party reasonable notice of its intention to disclose information, B. This Agreement does not diminish, revoke or supersede any existing confidentiality, non -disclosure or similar agreement between the parties. The obligations of the parties set forth in this Section are in addition to the obligations of the parties set forth in any existing confidentiality, non -disclosure or similar agreement or otherwise arising under applicable law. In the event that this Section is in conflict with any provision of an existing agreement covering confidentiality or non -disclosure obligations, the provision that provides stronger protection to the disclosing party shall govern. TERMINATION, CANCELLATION OR MODIFICATION A. This Agreement shall automatically terminate, and the license granted hereunder shall be automatically revoked, at such time as (i) Customer ceases to use the Application Software; or (ii) Customer breaches this Agreement in such manner that adversely impacts S&S' proprietary rights in the Application Software and fails to cure such breach upon notice pursuant to Section 1 I (B) below. B. This Agreement may not be canceled or modified except by the written mutual consent of both parties or as otherwise provided in this Agreement. If either party is in material breach of any of the terms and conditions of this Systems & Software, Inc. Confidential 8