Opening of Proposals - Utility Billing System - Tyler Technologies, Inc - Part 3

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INFRINGEMENT OF ANY PATENT, COPYRIGHT, OR TRADEMARK; (II) LIABILITYFOR DEATH OR BODILY INJURY; (Ill) PROVEN THEFT; OR (IV) PROVEN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 11. Conseguential Damages'GVaiver. IN NO EVENT SMALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANOTHER PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA. OR INFORMATION, ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, 'TORT (INCLUDING NEGLIGENCE) OF, OTHERWISE EVEN IF THE POSSIBILITY THEREOF MAY BE KNOWN IN ADVANCE TO ONE OR MORE PARTIES. 12. General. (a) 1ucuworatLpUofWorkRrAucsts. All valid Depositor and Beneficiary Work Requests are incorporated into this Agreement. (b) Purchase Orders. In the event that the Paying Party issues a purchase order or other instrur tent used to pay Service Fees to Iron Mountain, any terms and conditions set forth in the purebase order which constitute terms and conditions which are in addition to those set forth in this Agreement or which establish conflicting terms mud conditions to those set forth in this Agreement are expressly rejected by Iron Mountain. (c) Right to Make Copies_ Iron Mountain shall have the right to make copies of alt Deposit Material as reasonably necessary to perform the Services. Iron Mountain shall copy all copyright, nondisclosure, and other proprietary notices and titles contained on Deposit Material onto any copies made by Iron Mountain. Any copying expenses incurred by Iron Mountain as a result of a Work Request to copy will be home by the Party requesting the copies. Iron Mountain may request Depositor's reasonable cooperation in promptly copying Deposit Material in order for Iron Mountain to perform Services. (d) Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Texas, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of laws. (e) Authorized Person(s). Depositor and Beneficiary must each authorize axed designate one person whose actions will legally bind such party ("Authorized Person(s)" who shall be identified in the Authorized Person(g) Notices Table of this Agreement) and who may manage the Iron Mountain escrow account through tho Iron Mountain Website or written instruction. The Authorized Person(s) for each the Depositor and Beneficiary will maintain the accuracy of their name and contact information provided to Iron Mountain during the term of this Agreement. (f) Right to Rely on Instructions. Iron Mountain may act in reliance upon any instruction, irtst�rument, or signature reasonably believed by Iron Mountain to be genuine and frova as Authorized Person(s), officer, or other employee of a Party. Iron Mountain may assume that such representative of a Party to this Agreement who gives any written notice, request, or instruction has the authority to do so. Iron Mountain will not be required to inquire into the truth or evaluate; the merit of any statement or representation contained in any notice or document reasonably believed to be from such representative. With respeetto Release and Destruction of Deposit Materials, Iron Mountain shall rely on an Authorized Person(s). (g) Force Majeure. No Party shall be liable for any delay or failure in performance due to events outside the defaulting Parry's reasonable control, including without linutation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, acts of terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused Party shall be extended on a day -today basis for the time period equal to the period of the excusable delay. (h) Notices. All notices regarding Exhibit C (release) shall be sent by commercial express mail or other commercially appropriate means that provide prompt delivery and require proof of delivery. All other correspondence, including invoices, payments, and other documents ar►d communications, may be sent electronically or via regular mail. The Parties shall have the right to rely on the last known address of the other Parties. Any correctly addressed notice to last known address of the other Parties that is relied on herein that is refused, unclaimed, or undeliverable because of an act or omission of the Party to be notified as provided herein shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by electronic snail, the postal authorities by mail, through messenger or commercial express delivery services. (i) No Waiver. No waiver of rights under this Agreement by any Party shall constitute a subsequent waiver of this or any other right under this Agreement. a) Assigntnent No assignment of this Agreement by Depositor or Beneficiary orally rights or obligations of Depositor or Beneficiary under this Agreement is permitted without the written consent of Iron Mountain, w}rich shall not be M3F D Rev_ 06/01/08 02008 Iron Mountain Incorporated. Page 4 of 13