Biometric Master Purchase and Sales Agreement - NEC Corp of America - AFIS Upgrade for SBPD

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or copyright due to Customer's use of the Software, Equipment, and/or Services, provided that: (a) NEC is notified promptly in writing of the Action, (b) Customer gives NEC (or the Equipment manufacturer or Service provider, as applicable) the sole right to defend and settle any suit, and (c) Customer fully cooperates in the defense when and as requested by NEC. Should Customer's continued use of Software, Equipment, and/or Services be enjoined, NEC may at its option and expense, either: (,a) if commercially reasonable, procure for Customer the right to continue using the affected Software, Equipment, and/or Service(s), (b) replace or modify the same so that infringement is eliminated, or (c) If inone of these alternatives are commercially reasonable, either party may terminate this Agreement and NEC shall issue a pro-rata refund of the licensing fee. This indemnity shall not apply to any claims or suits concerning: (a) items manufactured Iby NEC at Customer's request and according to Customer's specifications, (b) use of Software, Equipment, and/or Services in a manner or for a purpose not contemplated by this Agreement, (c) equipment or software used by Customer in conjunction with the Equipment, but which was not supplied by NEC, or (d) commercial merchandise available on the open market or its equivalent. The foregoing provisions state the entire liability and obligations of each party, and the exclusive remedy of the other, with respect to any alleged intellectual property infringement hereunder. In no event shall NEC Ibe liable for any claims or demands attributable to the negligence or misconduct of Customer or failure of Customer to fulfill their responsibilities under this Agreement. Customer agrees to indemnify and hold NEC and its licensors harmless from any claims relating to (i) Customer's willful misconduct, (ii) Customer's violation of any law, rules or regulations relating to the use of the NEC products, including but not limited to, obligations for complying with all data protection legislation, in particular with regards to the transmission and processing of data, or (iii) Customer's use of the Software beyond the scope of the license granted herein. 110. TERMINATION FOR CAUSE. Either party may terminate this Agreement upon thirty (30) days' written notice if the other party materially breaches any term or condition of this Agreement or an Appendix and fails to cure the breach within thirty (30) days (fifteen (115) days in the event of payment default) following written notice specifying the breach. A material breach shall be deemed to occur (i) if Customer falls to pay any sum when, due ("Termination for Non-payment"); or (ii) if either Party falls to perform or observe any material obligation or provision to be performed or observed herein ("Termination for Breach"). For purposes of this Agreement, a material obligation or provision shall be defined as one stated in this Agreement, the breach of which would likely cause the non -breaching party to suffer material harm to its business or reputation. Upon termination, Customer shall immediately remove and destroy all copies of the Software or any parts thereof. 11. MONETARY OBLIGATIONS UPON EARLY TERMINATION. In the case of Termination for Non- payment or Termination for Breach resulting from the Customer's breach, any unpaid and accrued payment obligations, of Customer shall survive and continue beyond Termination and NEC shall be considered to have earned all fees set forth in Appendix A and will be entitled to retain any fees that have already been paid by Customer. 12. ASSIGNMENT. NEC may assign this Agreement to any NEC Affiliate upon prior written notice to Customer, otherwise, this Agreement may not be assigned by either Party without the express written consent of the other Party. No transfer or assignment of this Agreement, or of any interest hereunder, shall release either Party from its obligations hereunder. Any assignment or attempted assignment in violation of this provision shall be null and void. 13. THIRD PARTY BENEFICIARIES. Customer acknowledges and agrees that NEC's Licensors are direct and intended third party beneficiaries of this Agreement. 14. ARCHIVAL/BACK-UP COPIES. Customer may make one (1) copy of the NEC Software as necessary for backup and archival purposes only. All copies shall include any copyright and/or any other proprietary notices contained on, the original, NEC Software. Customer may not transfer the rights to a backup copy. Biometric Master Purchase and Sales Agreement v1 0062015 Page 5