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Information includes without limitation, all Client Data, the Solutions, EVEN IF EVERBRIDGE HAS BEEN ADVISED OF THE
<br />and either Party's business and marketing plans, technology and POSSIBILITY OF SUCH DAMAGE.
<br />technical information, product designs, reports and business
<br />processes. Confidential Information shall not include any 8.3 SMS Transmission. CLIENT ACKNOWLEDGES
<br />information that: (i) is or becomes generally known to the public THAT THE USE OF SHORT MESSAGING SERVICES ("SMS"),
<br />without breach of any obligation owed to Disclosing Parry; (ii) was ALSO KNOWN AS TEXT MESSAGING, AS A MEANS OF
<br />known to Receiving Party prior to its disclosure by Disclosing Party SENDING MESSAGES INVOLVES A REASONABLY LIKELY
<br />without breach of any obligation owed to Disclosing Party; (iii) was POSSIBILITY FROM TIME TO TIME OF DELAYED,
<br />independently developed by Receiving Party without breach of any UNDELIVERED, OR INCOMPLETE MESSAGES AND THAT THE
<br />obligation owed to Disclosing Party; or (iv) is received from a third PROCESS OF TRANSMITTING 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, INCLUDING
<br />7.2 Protection. Receiving Party shall not disclose or use
<br />any Confidential Information of Disclosing Party for any purpose
<br />other than performance or enforcement of this Agreement without
<br />Disclosing Party's prior written consent. If Receiving Party is
<br />compelled by law to disclose Confidential Information of Disclosing
<br />Party, including under the Freedom of Information Act or other
<br />public information request (i.e., "state sunshine" laws) it shall
<br />provide Disclosing Party with prior notice of such compelled
<br />disclosure (to the extent legally permitted) and reasonable
<br />assistance, at Disclosing Parry's cost, if Disclosing Party wishes to
<br />contest the disclosure. Receiving Party shall protect the
<br />confidentiality of Disclosing Party's Confidential Information in the
<br />same manner that it protects the confidentiality of its own
<br />confidential information of like kind (but in no event using less than
<br />reasonable care). Receiving Party shall promptly notify Disclosing
<br />Party if it becomes aware of any breach of confidentiality of
<br />Disclosing Party's Confidential Information.
<br />7.3 Upon Termination. Upon any termination of this
<br />Agreement, the Receiving Party shall continue to maintain the
<br />confidentiality of the Disclosing Party's Confidential Information
<br />and, upon request and to the extent practicable, destroy all
<br />materials containing such Confidential Information.
<br />Notwithstanding the foregoing, either Party may retain a copy of
<br />any Confidential Information if required by applicable law or
<br />regulation, in accordance with internal compliance policy, or
<br />pursuant to automatic computer archiving and back-up
<br />procedures, subject at all times to the continuing applicability of
<br />the provisions of this Agreement.
<br />8. WARRANTIES; DISCLAIMER.
<br />8.1 Everbridge Warranty. Everbridge shall provide the
<br />Solutions in material compliance with the functionality and
<br />specifications set forth on the applicable Solution Documentation.
<br />Everbridge shall provide 24X7X365 customer support in
<br />accordance with its most recently published Support Services
<br />Guide. Professional Services shall be performed in a professional
<br />manner consistent with industry standards. THE FOREGOING
<br />REPRESENT THE ONLY WARRANTIES MADE BY
<br />EVERBRIDGE HEREUNDER, AND EVERBRIDGE EXPRESSLY
<br />DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND,
<br />WHETHER EXPRESS, IMPLIED, STATUTORY, OR
<br />OTHERWISE, WARRANTIES OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM
<br />EXTENT PERMITTED BY APPLICABLE LAW.
<br />8.2 Disclaimer. EVERBRIDGE DOES NOT WARRANT
<br />THAT THE SOLUTION WILL OPERATE ERROR FREE OR
<br />WITHOUT INTERRUPTION. WITHOUT LIMITING THE
<br />FOREGOING, IN NO EVENT SHALL EVERBRIDGE HAVE ANY
<br />LIABILITY FOR PERSONAL INJURY (INCLUDING DEATH) OR
<br />PROPERTY DAMAGE ARISING FROM FAILURE OF THE
<br />SOLUTION TO DELIVER AN ELECTRONIC COMMUNICATION,
<br />HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY,
<br />MOBILE NETWORK OPERATORS AND INTERMEDIARY
<br />TRANSMISSION COMPANIES. ACCORDINGLY, EVERBRIDGE
<br />RECOMMENDS THAT SMS MESSAGING NOT BE USED AS THE
<br />SOLE MEANS OF COMMUNICATION IN AN EMERGENCY
<br />SITUATION.
<br />9. INDEMNIFICATION.
<br />9.1 By Client. Client shall defend, indemnify and hold
<br />Everbridge harmless against any loss or damage (including
<br />reasonable attorneys' fees) incurred in connection with any third
<br />party claim, suit or proceeding ("Claim") arising out of any data
<br />sent, posted or otherwise transmitted via the Solution by Client or
<br />Contacts, or any breach by Client of Sections 3 or 6.
<br />9.2 By Everbridge. Everbridge shall defend, indemnify
<br />and hold Client harmless from and against any Claim against Client
<br />alleging that the Solution as contemplated hereunder infringes an
<br />issued patent or other IP Right in a country in which the Solution is
<br />provided to Client. If (x) any aspect of the Solution is found or, in
<br />Everbridge's reasonable opinion is likely to be found, to infringe
<br />upon the IP Right of a third party or (y) the continued use of the
<br />Solution is enjoined, then Everbridge will promptly and at its own
<br />cost and expense at its option: (i) obtain for Client the right to
<br />continue using the Solution; (ii) modify such aspect of the Solution
<br />so that it is non -infringing; or (iii) replace such aspect of the Solution
<br />with a non -infringing functional equivalent. If, after all commercially
<br />reasonable efforts, Everbridge determines in good faith that options
<br />(i) - (iii) are not feasible, Everbridge will remove the infringing items
<br />from the Solution and refund to Client on a pro -rata basis any
<br />prepaid unused fees paid for such infringing element. The remedies
<br />set forth in this Section 9.2 are Client's exclusive remedy for Claims
<br />for infringement of an IP Right. Everbridge shall have no obligation
<br />or liability for any claim pursuant to this Section to the extent arising
<br />from: (i) the combinations, operation, or use of the Solution supplied
<br />under this Agreement with any product, device, or software not
<br />supplied by Everbridge to the extent the combination creates the
<br />infringement; (ii) the unauthorized alteration or modification by
<br />Client of the Solution; or (iii) Everbridge's compliance with Client's
<br />designs, specifications, requests, or instructions pursuant to an
<br />engagement for Everbridge Professional Services relating to the
<br />Solution to the extent the claim of infringement is based on the
<br />foregoing.
<br />9.3 Indemnification Process. The indemnifying party's
<br />obligations underthis Section 9 are contingent upon the indemnified
<br />party (a) promptly giving notice of the Claim to the indemnifying
<br />party once the Claim is known; (b) giving the indemnifying party sole
<br />control of the defense and settlement of the Claim (provided that
<br />the indemnifying party may not settle such Claim unless such
<br />settlement unconditionally releases the indemnified party of all
<br />liability and does not adversely affect the indemnified party's
<br />business or service); and (c) providing the indemnifying party all
<br />available information and reasonable assistance.
<br />10. LIABILITY LIMITS. To the maximum extent permitted by
<br />law, neither Party shall have any liability to the other Party for any
<br />
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