Resolution 2023-13 - Laserfiche WebLink

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this Agreement for Toptracer's material breach in accordance with section 11.1.1. 11.4 Any termination of this Agreement shall not affect any accrued rights or liabilities of either party (including Customer's liability for all fees), nor shall it affect the continuance in force of any provision hereof, which is expressly or by implication intended to continue in force on or after such termination. 11.5 Without prejudice to its rights to terminate under this Clause Error! Reference source not found., Toptracer shall be entitled to suspend Customer use of the Product for any period Customer is in breach of this Agreement which would entitle Toptracer to terminate. 12 LIABILITY AND INDEMNITY 12.1 TOPTRACER SHALL AT ITS OWN EXPENSE, INDEMNIFY, DEFEND OR SETTLE ANY CLAIM THAT IS INSTITUTED AGAINST CUSTOMER TO THE EXTENT SUCH CLAIM ALLEGES THAT THE PRODUCT INFRINGES ANY PATENT RIGHT OR COPYRIGHT OFATHIRDPARTY. CUSTOMER SHALL HAVE THE OBLIGATION TO (1) GIVE TOPTRACER IMMEDIATE NOTICE OF ANY SUCH CLAIM OR THREAT THEREOF; (II) PERMIT TOPTRACER SOLE CONTROL, THROUGH COUNSEL OF THEIR CHOICE, TO ANSWER THE CHARGE OF INFRINGEMENT AND DEFEND AND/OR SETTLE SUCH CLAIM; AND (III) GIVE TOPTRACER ALL INFORMATION, ASSISTANCE AND AUTHORITY TO DEFEND OR SETTLE SUCH CLAIM. 12.2 IN NO EVENT SHALL TOPTRACER BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER OR FOR LOSS OF PROFITS, INCOME OR ANTICIPATED REVENUE, OR LOSS OF DATA. TOPTRACER'S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER FOR THE PRODUCT. NOTHING IN THIS CLAUSE 12 SHALL LIMIT OR EXCLUDE ANY LIABILITIES WHICH MAY NOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, 12.3 To the extent permitted by law, Customer agrees to indemnify, defend and hold harmless Toptracer (and its officer, employees, and affiliates) from and against any and all claims, suits, actions, losses, damages or costs (including legal fees), arising out of, or in connection with (i) any breach by Customer of Clauses 2, 5.1.3 or 8or (ii) any third -party claims relating to use of the Facility, save in each case, to the extent the same arise from Toptracer's gross negligence or willful misconduct. 13 GOVERNING LAW 13.1 This Agreement shall be governed by the laws of the State of Colorado, without regard to its principles of conflicts of law provisions. The parties irrevocably consent to the jurisdiction and venue of the courts located in Boulder County Colorado over any disputes between them arising out of this Agreement. 13.2 Notwithstanding the foregoing, it is agreed that Toptracer and Customer shall have the right at any court of competent jurisdiction to seek injunctive or interim relief to protect any of its rights or interests in this Agreement or in respect of the Product. 14 MISCELLANEOUS 14.1 To complement the Product, Toptracer may offer promotions or subscription services via the Toptracer Range app or otherwise. 14.2 Customer shall not be entitled to assign or transfer this Agreement, or the right to use the Product, without Toptracer's prior written consent. Toptracer shall be freely entitled to assign, novate, or otherwise transfer this Agreement to any third party without requiring Customer's consent; provided that, Toptracer shall giver Customer notice of such assignment, novation, or transfer, and provided, further that, such assignment, novation, or transfer does not disrupt Customer's use of the Product or any of Customer's rights hereunder. 14.3 This Agreement constitutes the entire agreement between the parties in relation to the subject matters provided for herein. 14.4 If any clause or term of this Agreement shall be deemed to be invalid or unenforceable, this shall not affect the legal enforceability of this Agreement as a whole and the parties agree to replace such invalid clause with a mutually agreed enforceable replacement clause. 14.5 The failure of either party to insist upon the strict adherence to any term of this Agreement shall not be considered as a waiver of any right hereunder nor shall it deprive that party of the right to insist upon the strict adherence to that term or any other term of this Agreement at some other time.