|
lnformation includes without limitation, all Client Data, the Solutions, EVEN lF EVERBRIDGE HAS BEEN ADVISED OF THE
<br />and either Party's business and marketing plans, technology and POSSIBILIry OF SUCH DAMAGE.
<br />technical information, product designs, reports and business
<br />processes. Confidential lnformation shall not include anv 8.3 SMS Transmission. CLIENT ACKNOWLEDGES
<br />information that: (i) is or becomes generally known to the publil THAT THE USE OF SHORT MESSAGING SERVICES ('SMS),
<br />without breach of any obligation owed to Disclosing Party; (ii) was A!S9 KNOWN AS TEXT MESSAGING, AS A MEANS OF
<br />known to Receiving Party prior to its disclosure by Discloiing p"rty 9E!?!!G MESSAGES INVOLVES A REASONABLY LIKELY
<br />without breach of any obligation owed to Disclosing Party; (iii) waa POIiSlBlUTY FROM TIME TO TIME OF DELAYED,
<br />independently developed by Receiving Party without Oreictr ot any !!DE!VERED, OR INCOMPLETE MESSAGES AND THAT THE
<br />obligation owed to Disclosing Party; or (iv) is received from a third PRQQESS OF TMNSMITTING SMS MESSAGES CAN BE
<br />party without breach of any obligation owed to Disclosing Party. UNRELIABLE AND INCLUDE MULTIPLE THIRD PARTIES THAT
<br />PARTICIPATE IN THE TRANSMISSION PROCESS, INCLUDING7.2 Protection. Receiving Party shall not disclose or use MOBILE NETWORK OPERATORS AND INTERMEDIARY
<br />any Confidential lnformation of Disclosing Party for any purpose TMNSMISSION COMPANIES. ACCORDINGLY, EVERBRIDGE
<br />other than performance or enforcement of this Agreement without RECOMMENDS THAT SMS MESSAGING NOT BE USED AS THE
<br />Disclosing Party's prior written consent. lf Receiving Party is SOLE MEANS OF COMMUNICATION lN AN EMERGENCY
<br />compelled by law to disclose Gonfidential lnformation of Disclosing SITUATION.
<br />Party, including under the Freedom of lnformation Act or other
<br />public information request (i.e., "state sunshine" laws) it shall 9. INDEMNIFICATION.
<br />5i:Jfi,.3'(:5"',H
<br />t"H.,'',tJrii}".r:,"Jiefi j|:t,.!:trfil:! _ :,t, Bv crient. crient shar derend, indemnirv and hord
<br />assistance, at Disclosing partyG cost, it oisclosing p"rtv-;iJ";i; :"_AIi99: harmless against any loss or damage (including
<br />contest the disclosure. R6ceiving party sh-all p;ot".t-il; 111"9i*9 attorneys' fees) incurred in connection with any third
<br />confidentiality of Disclosing party's Confidentia lnrorri"tion in ir,J q3rtv ctai1, suit or proceeding ("Glaim") arising out of any data
<br />same mann'er that it pritects the confidentiatity oi
<br />-its own :Tj-q?_.t9d or otherwise lransmitted- via the Solution by Client or
<br />confidential information of like kind (but in no event Jsirig d;. ih"; Contacts, or any breach by Client of Sections 3 or 6.
<br />reasonable care). Receiving Party shall promptly notifu Disclosing- g.Z By Everbridge. Everbridge shall defend, indemnifyParty if it becomes aware of any breach of confidentiality of
<br />"n6noiJctienlnarmlessfiomandagainstanyclaimagainstclientDisclosing Party's confidential lnformation' alleging that the solution as contemplated hereunder infringes an
<br />7.3 Upon Termination. Upon any termination of this i.:Y:9 q,"j:"! or other lP Right in a country in which the Solution is
<br />Agreement, the Receiving party shall coniinue to r"int"in in" gi_"_"idgg !" client. lf (x) any aspect of the solution is found or, in
<br />confidentiality of the Disc-iosing party's connoentiai'iniormatioi :y:Pf_s?'" reasonable opinion is likely to be found, to infringe
<br />and, upon request and to the extent practic"ur., o".irov- "ii :?:i,11",]P Right of a third party or (y) the continued use of the
<br />materials containing such confidential 'r.t-r"ii"". sglYtion,is enjoined, then Everbridge will promptly and at its own
<br />Notwithstanding the fo-regoing, either party may retain a copv oi 99:1, and expense at its option: (i) obtain for client the right to
<br />any confidentilt lnformitiori if required " uv appricau[ l;il ;; :?t]ll:f,!"ins the solution; (ii) modifo such aspect of the solution
<br />regulation, in accordance with internal ro.pii"n."-pori"v, "i :?,I?tjt': non-infringing; or (iii) replace such aspect of the Solution
<br />pursuant to automatic computer archiving u.d - d;k-rp ylll1_1?l:inflinging functional equivalent. lf, after all commercially
<br />procedures, subject at all times to the continuing
<br />"ppri""uiliiy
<br />i t:"":lt_" efforts, Everbridge determlnes in good faith that options
<br />ihe provisions ofthis Agreement. fi;q|3gffifi.fj: 5ffiT't"r".111.,'itr"j $:_,f#?:,1J"#;8. WARRANTIES; DISGLAIMER. prepaid unused fees paid for such infringing element. The remedies
<br />set forth in this Section 9.2 are Client's exclusive remedy for Claims8.1 Everbridge Warranty. Everbridge shall provide the for infringement of an lP Right. Everbridge shall have no obligation
<br />Solutions in material compliance with the functionality and or liability for any claim pursuant to this Section to the extent arising
<br />specifications set forth on the applicable Solution Documentation. from: (i) the combinations, operation, or use of the Solution supplied
<br />Everbridge shall provide 24X7X365 customer support in under this Agreement with any product, device, or software not
<br />accordance with its most recently published Support Services supplied by Everbridge to the extent the combination creates the
<br />Guide. Professional Services shall be performed in a professional infringement; (ii) the unauthorized alteration or modification by
<br />manner consistent with industry standards. THE FOREGOING Client of the Solution; or (iii) Everbridge's compliance with Clients
<br />REPRESENT THE ONLY WARRANTIES MADE BY designs, specifications, requests, or instructions pursuant to an
<br />EVERBRIDGE HEREUNDER, AND EVERBRIDGE EXPRESSLY engagement for Everbridge Professional Services relating to the
<br />DISCLAIMS ALL OTHER WARMNTIES OF ANY KIND, Solution to the extent the claim of infringement is based on the
<br />WHETHER EXPRESS, IMPLIED, STATUTORY, OR foregoing.
<br />OTHERWISE, WARMNTIES OF MERCHANTABILIry OR
<br />FITNESS FOR A PARTICULAR pURpOSE, TO THE MMIMUM 9.3 lndemnification Process. The indemnifying party's
<br />EXTENT PERMITTED BY APPLICABLE LAW. obligations under this Section 9 are contingent upon the indemnified
<br />party (a) promptly giving notice of the Claim to the indemnifiTing8.2 Disclaimer. EVERBRIDGE DOES NOT WARMNT party once the Claim is known; (b) giving the indemnifying party sole
<br />THAT THE SOLUTION WILL OPERATE ERROR FREE OR control of the defense and settlement of the Claim (provided that
<br />WITHOUT INTERRUPTION. WITHOUT LIMITING THE the indemnifying party may not setlle such Claim unless such
<br />FOREGOING, lN NO EVENT SHALL EVERBRIDGE HAVE ANY settlement unconditionally releases the indemnified party of all
<br />LlABlLlry FOR PERSONAL INJURY (INCLUDING DEATH) OR liability and does not adversely affect the indemnified party's
<br />PROPERry DAMAGE ARISING FROM FAILURE OF THE business or service); and (c) providing the indemnifying party all
<br />SOLUTION TO DELIVER AN ELECTRONIC COMMUNICATION, available information and reasonable assistance.
<br />H.*EVER.AUSEDANDUNDERANYTHE.RYoFLIABILITY' i0. LlABlLlw LlMlrs. To the maximum extent permitted by
<br />law, neither Party shall have any liability to the other Party for any
<br />3
|