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CM5 #U355
<br />which they may be liable, from and against claims, damages or causes of action including reasonable
<br />attorneys' fees and related costs for any death, injury, or damage to property arising from act(s), error(s), or
<br />omission(s) of the Contractor, its employees or Subcontractors or volunteers, at any tier, relating to the
<br />performance under the Master Agreement.
<br />2) IndernaWcation — Intellectual Property. The Contractor shall defend, indemnify and hold harmless
<br />NASPO, NASPO Cooperative Purchasing Organization LLC (doing business as NASPO ValuePoint), the
<br />Lead State, Participating Entities, Purchasing Entities, along with their officers, agents, and employees as
<br />well as any person orcndty for which they may be liable ("Indemnified Party"), from and against claims,
<br />damages or causes of action including reasonable attorneys' fees and related costs arising out of the claim
<br />that the Product or its use, infringes Intellectual Property rights ("Intellectual Property Claim").
<br />a) The Contractor's obligations under this section shall not extend to any combination of the Product with
<br />any other Product, system or method, unless the Product, system or method is:
<br />I. Provided by the Contractor or the Contractor's subsidiaries or affiliates;
<br />If. Specified by the Contractor to work with the Product; or
<br />ill. Reasonably required, in order to use the Product in its intended manner, and the infringement
<br />could not have been avoided by substituting another reasonably available Product, system or
<br />method capable of performing the same function; or
<br />iv. It would be reasonably expected to use the Product in combination with such Product, system or
<br />method.
<br />b) The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an
<br />Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the
<br />Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was
<br />prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the
<br />Contractor. If the Contractor promptly and reasonably investigates and defends any Intellectual
<br />Property Claim, it shall have control over the defense and settlement of it. However, the Indemnified
<br />Party must consent in writing for any money damages or obligations for which it may be responsible.
<br />The Indemnified Party shall furnish, at the Contractor's reasonable request and expense, information
<br />and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or
<br />settlement of the Intellectual Property Claim, the indemnified Party may assume the defense or
<br />settlement of it and the Contractor shall be liable for all costs and expenses, including reasonable
<br />attorneys' fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual
<br />Property Claim. Unless otherwise agreed in writing, this section is not subject to any limitations of
<br />liability in this Master Agreement or in any other document executed in conjunction with this Master
<br />Agreement.
<br />N. No Waiver of Sovereign Immunity
<br />1) In no event shall this Master Agreement, any Participating Addendum or any Contract or any Purchase
<br />Order issued thereunder, or any act of a Lead State, a Participating Entity, or a Purchasing Entity be a
<br />waiver of any form of defense or immunity, whether sovereign immunity, governmental immunity,
<br />immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from
<br />any claim or from the jurisdiction of any court.
<br />2) This section applies to a claim brought against the Participating State only to the extent Congress has
<br />appropriately abrogated the Participating State's sovereign immunity and is not consent by the Participating
<br />State to be sued in federal court. This section is also not a waiver by the Participating State of any form of
<br />immunity, including but not limited to sovereign immunity and immunity based on the Eleventh
<br />Amendment to the Constitution of the United States.
<br />O. Governing Low and Venue
<br />1) The construction and effect of the Master Agreement shall be governed by the laws of the Lead State.
<br />Venue for any administrative or judicial action relating to the Solicitation and Master Agreement shall be in
<br />the City and County of Denver, Colorado.
<br />2) The construction and effect of any Participating Addendum or Order against the Master Agreement shall be
<br />governed by and construed in accordance with the laws of the Participating Entity's or Purchasing Entity's
<br />State.
<br />Page 19 of 21
<br />Body Armor Products HFP-NK-15-001, NASPO ValuePoinl Master Agreement Terms and Conditions
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