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Customers failure to provide an acceptable operating environment, or to any other non -warranted
<br />cause, then Customer will be obligated to pay Scantron for Its time and expenses Incurred In
<br />diagnosing the cause, at Scantron's then -standard rates.
<br />D. SERVICES. For a period of 30 days following completion Services (or during such other period
<br />as agreed In a Schedule, hereinafter the "Services Warranty Period'), Scantron warrants that the
<br />Services will be provided in a professional and workmanlike manner Consistent with the definition
<br />of the Services to be performed, and that Work Product, If any, will substantially meet the
<br />specifications staled In a Schedule when delivered by Scantron for installation Provided that
<br />Customer gives Scantron written notice of a failure to meet the foregoing warranty within the
<br />Services Warranty Period, Scantron will use reasonable efforts to correct any Services that fail to
<br />comply with the foregoing warranty. Them is no assurance that Work Product will be error -free,
<br />but Scantron will undertake to Identify and correct material, reproducible Work Product andlor
<br />Documentation errors that Customer timely brings to Scanlron's attention. If Scantron Is unable t0
<br />correct or m-perform the Services, Customers sole and exclusive remedy shall be a refund of the
<br />reasonable portion of the fees paid with respect to such Services.
<br />E. THIRD PARTY PRODUCTS, Some Products and Services may Include or operate In conjunction
<br />with computer programs, data or hardware supplied by a third party Other than third party
<br />programs of data that are embedded In, and delivered as, an Inseparable part of the Product or
<br />Services, all third party computer programs, data and hardware ("Independent Third Party
<br />Products") are supplied "AS IS" by Scantron. If Independent Third Party Products are supplied
<br />with separate warranty and support tens that can be passed through to Customer, the third party
<br />that supplies such programs and data is responsible for fulfilling such womanly and support terms,
<br />and Scantron makes no warranty and assumes no obligation with respect to such Items.
<br />F. EXCLUSIVE WARRANTIES AND REMEDIES. SC urron rises net warrant that the Products are free
<br />from all bugs, errors or omissions, or that Services will uninterrupted or error -free. The foregoing
<br />warranties do not extend to any failure of the Products or Services caused by: modification or
<br />change not made by Scanlron, noncompliance because of use of the Products or Services In
<br />combination with Items furnished by anyone other than Scantron or not approved in writing far use
<br />with the Products or Services by Scantron; or use of the Products In an operating environment
<br />other than as specified in writing by Scantron; damage caused by accident, abuse, misuse, liquid
<br />contact, power surge, fire, earthquake or other external cause. THE WARRANTIES AND
<br />REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND ARE IN SUBSTITUTION
<br />FOR ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SCANTRON,
<br />INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
<br />NON -INFRINGEMENT OR FITNESS FORA PARTICULAR PURPOSE,
<br />10. LIMITATIONS OF LIABILITY. SCANTRON'S ENTIRE LIABILITY, WHETHER IN CONTRACT,
<br />TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER LEGAL
<br />OR EQUITABLE THEORY, FOR ANY CLAIM ARISING FROM OR RELATED TO THIS
<br />AGREEMENT OR ANY PRODUCTS, SERVICES, DELIVERABLES OR OTHER ITEMS FURNISHED
<br />OR TO BE FURNISHED UNDER THIS AGREEMENT, WILL IN NO EVENT EXCEED THE FEES
<br />PAID TO SCANTRON BY CUSTOMER FOR THE APPLICABLE ITEM MICH IS THE BASIS FOR
<br />THE CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE
<br />EVENT GIVING RISE TO THE CAUSE OF ACTION, NOTWITHSTANDING ANY FAILURE OF
<br />ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO ACTION RELATED TO THIS
<br />AGREEMENT MAY BE BROUGHT MORE THAN 2 YEARS AFTER THE OCCURRENCE OF THE
<br />EVENT GIVING RISE TO THE CAUSE OF ACTION, IN NO EVENT WILL SCANTRON BE LIABLE
<br />TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR LOST DATA, LOST PROFITS,
<br />INTEREST OR COST OF MONEY; OR FOR COVER', OR FOR ANY PUNITIVE, INDIRECT,
<br />INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF SCANTRON'S
<br />PERFORMANCE OR NONPERFORMANCE OR THE USE OF, INABILITY TO USE OR RESULTS
<br />OF USE OF ANY PRODUCTS, SERVICES, DELIVERABLES, OR OTHER ITEMS.
<br />11. DEFENSE OF INFRINGEMENT CLAIMS. Scantron will defend Customer against any Claim based
<br />upon Infringement of any U.S. patent, copyright or kademafk by the Products (not including the
<br />Independent Third Party Products), provided that: Customer promptly notifies Scanlron of such
<br />proceeding; Scantron has exclusive Control over the defense and settlement of the proceeding,
<br />Customer provides reasonably requested assistance in the defense and settlement of the proceeding;
<br />and Customer complies with any settlement or court order made in connection with such proceeding.
<br />Scantron will: Indemnify Customer against any and all damages, costs and attorneys'fees finally
<br />awarded against Customer in any such proceeding; reimburse Customer's reasonable, out-of-pocket
<br />expenses incurred In providing assistance requested by Scantron; pay any amounts agreed by
<br />Scantron in settlement of any claims of Infringement. Scantron's obligations under this Section will
<br />not apply to any infringement arising out of. use or combination of the Produces with products, goods,
<br />services or other items not furnished for use with the Products andlor Services by Scantron;
<br />modification or change not made by Scantron; use of an infringing version of the Produde when a
<br />comparable noninfringing version has been made available to Customer; or Products developed to
<br />specifications which Customer has supplied or required of Scantron. In the event that Scantron
<br />reasonably believes it will be required to discontinue offering the Products, Scantron will, at its option,
<br />do one of the following'. obtain for Customer the right to continue use of the Products; modify the
<br />Protluds to make mein noninfringing; or if Scantron Is not reasonably able to accomplish the
<br />foregoing, terminate Customer's right to use the infringing Products and refund to Customer a pro-rata
<br />portion of the fees Customer paid to Scantron for such Products, amortized on a three-year straight
<br />line basis from the date of delivery. THIS SECTION STATES THE ENTIRE LIABILITY OF
<br />SCANTRON VdTH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT
<br />BY ANY PRODUCTS, SERVICES, WORK PRODUCT OR OTHER ITEMS FURNISHED UNDER
<br />THISAGREEMENT.
<br />12. MISCELLANEOUS.
<br />A. No WAIVER. The failure of either party to enforce any rights under this Agreement or to take
<br />action against the other party will not be deemed a waiver by that party as to subsequent
<br />enforcement of rights.
<br />B. ASSIGNMENT. This Agreement may not be assigned or Iansferred in any way by Customer
<br />without Scantron's prior written consent. Attempted assignments without Scantfon consent are
<br />void.
<br />C. NOTICES. forces shall be in writing and delivered by hand, mail or courier and will be deemed
<br />delivered only upon receipt
<br />D. DISPUTES; APPLICABLE LAW AND VENUE. This Agreement will W interpreted, construed and
<br />enforced In all respects in accordance with the local laws of the Stale of California, USA, or the
<br />laws of such other slate as Identified In a Schedule, without reference to its choice of laws
<br />principles. Customer and Scantron each waive application of the 1980 ON Convention on
<br />Contracts for the Internatlorwl Sale of Goods. In the event of a dispute, the parties will first
<br />attempt to resolve the matter informally through goad faith negotiations involving executives from
<br />each party. Failing resolution, the parties agree to mediation administered by the American
<br />Arbitration Association. The costs of mediation shall be shared equally by the padles. All
<br />disputes shall be brought In the federal Cr state court with jurisdiction over residents of Orange
<br />County, California, or such other venue as Is specified in a Schedule, and each party consents to
<br />the exclusive jurisdiction of such courts.
<br />E. Scull EMPLOYMENT OPPORTUNITY; AFFIRMATIVE ACTION. In connection with SCantron's
<br />performance under this Agreement, unless exempt, the Equal Opportunity Clauses as set forth in
<br />Section 202 of Executive Order 11246, as amended, 41 C.F.R. § 1.4(a), Section 402 of the
<br />Vietnam Ere Veterans Readjustment Act of 1974, as amended, 41 C.F.R. § 250.5(a), Section 503
<br />of the Rehabilitation AN of 1973, as amended, and 41 C.F.R. § 741.5(a) are incorporated by
<br />reference. Scantron has developed and maintains an affirmative action program.
<br />F. INSURANCE. Scanlron shall Carry and maintain commercial general liability Insurancein an amount
<br />not less than $1 million per Cacumence with a $2 million aggregate covering claims fa bodily Injury,
<br />death, personal injury or property damage. Such insurance shall (a) name me City, its officers,
<br />employees, agents and representatives as additional insured(sg (b) be primary and not contributory with
<br />resped 0 Insurance 0r self-insurance programs maintained by the City; and (c) Contain standard
<br />separation of insured provisions.
<br />G. RESTRICTED RIGNre, If Cuslcmer Is the United States Government or any agency or Instromentality
<br />thereof, the Software and Documentation are providedwith RESTRICTED RIGHTS. Use, duplication or
<br />disclosure by the United Slates Government is subject to restriction as set faith in (i) subparagraph
<br />(c)(1)(II) of me Rights in Technical Data and Computer Software clause at DFAR 252227-7013
<br />(October 1988), If Customer is subject fa Department of Defense Federal Acquisition Regulations; Cr (li)
<br />FAR 52.227-19 (June 1967), if Customer Is act subject to the DFAR, but Is the United Slates
<br />Government or any agency or InsWmentality, thereof. The "manuf ecWref or "contractor, for purposes
<br />of such provisions, is Scanlron Corporation, 1313 Lone Oak Road, Eagan, MN 55121.1334, The
<br />Software is a °commerdall Item° as that term Is defined at 48 C.F.R. 2.101 (Oct 1995), Consisting of
<br />"commercial Computer software" and "Commercial Computer softwae documentation;' as such terms
<br />are used in 48 C.F.R. 12.212 (Sept 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1
<br />Through 227.72024 (June WIDE), all U.S. Government End Users acquire me Software and
<br />Documentation with only those rights set forth herein.
<br />H. COMPLIANCE WITH LAWS. Customer shall, at all times, use the Products and Services In Compliance
<br />with all applicable laws, induciing observing the harms and conditions of its own prhrecy polides and
<br />applicableoopyright laws when requesting the design and printing of forms.
<br />I. ENTIRE AGREEMENT. This Agreement in =Junct On with the applicable purchase OMer and
<br />Schedules supersedes any and all prior agreements among me parties related to the Products, Me
<br />SeMces and any other Items provided hereunder. No modification of any of the provisions of this
<br />Agreementwill W valid unless set forth in awmart Instrument signed by Noth partles,
<br />-END-
<br />SCANTRON CORPORATION CONFIDENTIAL
<br />STANDARD TERMS ANDAR AND
<br />SERVICES
<br />PAGEI Ior E2 Rn.wa}Ata
<br />HARDWARE, SOFTWARE ANO SERVICES THESE TERMS AND CONDITIONS HAVE BEEN MODIFIED FOR THE CITY OF SANTAANA 11.11.2020
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