Software License Agreement - TokaySQL Software Upgrade and Three (3) Year’s Support

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6.2 Al has the right and all necessary permissions to provide the Software to the Customer. In the event of the breach of this representation, Al shall defend, indemnify and hold harmless Customer, its employees, officers, directors and representatives from and against any claim, demand, suit, or proceeding ("Claim"), damages losses, liabilities, costs, and expenses (including reasonable attorney's fees) arising out of or relating to any third party claim alleging that the use of the Software infringes or misappropriates that third party's intellectual property rights. 6.3 For all indemnity claims the party seeking indemnity must promptly give the indemnifying party written notice of the claim; give the indemnifying party sole control of the defense and settlement of the claim; and provide to the indemnifying party all reasonable assistance, at the indemnifying party's expense. This section states the party seeking indemnity's exclusive remedy for any type of claim. 7. Disclaimers. 7.1 THE SOFTWARE IS PROVIDED ON THE BASIS THAT IT SUBSTANTIALLY CONFORMS TO ITS DOCUMENTATION. THE SUPPORT AND MAINTENANCE SERVICES WILL BE PROVIDED ON AN INDUSTRY -STANDARD BASIS. ON BREACH OF THESE WARRANTIES THE SERVICES WILL BE RE -PERFORMED SO THAT THEY MEET THIS WARRANTY. OTHER THAN THIS WARRANTY Al DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7.2 NEITHER PARTY IS LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR LOSS OF PROFITS RESULTING FROM THE SOFTWARE OR SUPPORT AND MAINTENANCE SERVICES (OR ANY THIRD PARTY GOODS OR SERVICES) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If either party is liable to the other in no event will the total aggregate liability of a party to the other exceed the SMA fees paid by the Customer to Al in the 1 year period preceding the date of a claim. 8. Miscellaneous. 8.1 This Agreement includes its schedules and is the entire agreement between Al and Customer regarding its subject matter. 8.2 The parties acknowledge that each is an independent contractor and nothing in this Agreement constitutes a joint venture or partnership and neither party has the right to bind nor act for the other as agent or in any other capacity. 8.3 You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement without our prior written consent. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns. Al may assign this Agreement in connection with a merger, amalgamation or corporate reorganization involving Al, or in connection with the sale of all or substantially all the assets of Al or to an affiliate or wholly -owned subsidiary of Al. 8.4 The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit that party's right to enforce such provision at a later time. All waivers must be in writing executed by that party to be effective. 8.5 If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such a construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect. 8.6 The laws of the State of Indian govern this Agreement and all disputes arising out of it shall be submitted to a court of competent jurisdiction within St. Joseph County Indiana. 8.7 Sections 5, 6, 7 and any other sections that may be reasonably construed as intended to survive shall survive termination of this Agreement. 8.8 Upon consent by Al, this Agreement maybe used for cooperative procurement by any public or municipal body, entity, agency or institution, If so authorized, and in order to forego a related entity RFP or similar competitive bidding Aquatic Informatics Software License Agreement