FAAC, INC. 2 - 2006 - Laserfiche WebLink

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right to continue using such Equipment, (2) replace the same with non-infringing equipment, (3) modify the equipment so it becomes non-infringing, or (4) remove the equipment and refund the lease payments less transportation and installation costs. 10.2. GENERAL INDEMNITY BY FAAC. FAAC will indemnify and hold City harmless frorn any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against City to the extent it is caused by the negligence of FAAC, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if City gives FAAC prompt, written notice of any the claim or suit. City will cooperate with FAAC in its defense or settlement of the claim or suit. This section sets forth the full extent of FAAC's general indemnification of City from liabilities that are in any way related to FAAC's performance under this Agreement. 10.3. GENERAL INDEMNITY BY CITY. City will indemnify and hold FAAC harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against FAAC to the extent it is caused by the negligence of City, its ernployees or agents, while performing their duties under this Agreement, if FAAC gives City prompt, written notice of any claim or suit. FAAC will cooperate with City in its defense or settlement of the claim or suit. This section sets forth the full extent of City's general indemnification of FAAC from liabilities that are in any way related to City's performance under this Agreernent. 11. LIMITATION OF LIABILITY Except for the express remedies stated in this Agreement, FAAC shall have no liability for any of City's damages, including interruption of business or any loss of business or profits, loss due to personal injury or death, or harm to property or expense of City arising out of the performance of this Agreement. 12. DISPUTES The Parties, by their project managers, will attempt to settle any dispute arising from this Agreement (except for a claim relating to intellectual property or breach of confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the Parties, if necessary. If cooperative efforts fail, the dispute will be rnediated by a mediator chosen jointly by the Parties within thirty (30) days after notice by one of the Parties demanding non-binding mediation. The Parties will not unreasonably withhold their consents to the selection of a mediator, will share the cost of the mediation equally, may agree to postpone mediation until they have completed some specified but limited discovery about the dispute, and may replace mediation with some other form of non- binding alternative dispute resolution ("ADR"). 13. DEFAULT AND TERMINATION 13.1 DEFAULT BY A PARTY. If ei.ther Party fails to perform a rnaterial obligation under this Agreement, the other Party rnay consider the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non- performing Party a written and detailed notice of default. Except for a default by City for failing Santa Ana, CSA FAAC Page 5 2-6-06