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VII. Term
A. Either party may terminate this Agreement for breach upon 60 days’ prior written notice to the
other party; provided, however, that the notice shall identify the specific breach; and provided,
further that the other party shall have the right to cure any alleged breach within 30 days
following receipt of such notice.
VIII. Fees and Payment
A. Client agrees to pay ESI the fees set forth in Exhibit A for the services described in this Agreement
(“Service Charges”). Service Charges shall be paid in accordance with the terms and conditions
set forth in Exhibit A.
B. Interest may be imposed on overdue Service Charges. In addition, ESI shall have the right, in its
sole discretion, to take one or more of the following actions without further notice to Client in
the event of untimely payments for fees due to ESI under Exhibit A: (i) immediately suspend
services described in this Agreement, or (ii) terminate the Agreement in accordance with Section
VII.
C. The Service Charges set forth in Exhibit A may be changed by ESI on each renewal date, with prior
written notice to Client.
IX. Indemnification and Limitation of Liability
A. ESI shall indemnify and hold Client and its successors, parents, subsidiaries, officers, directors,
employees (the “Client Parties”) harmless against any and all liabilities, loss, costs or expenses of
whatsoever kind and nature which may be imposed on, incurred by, or asserted against the
Client Parties at any time to the extent such liability, loss or expense results from ESI’s gross
negligence or willful misconduct under this Agreement.
B. Client shall indemnify and hold ESI and its successors, parents, subsidiaries, officers, directors,
employees (the “ESI Parties”) harmless against any and all liabilities, loss, costs or expenses of
whatsoever kind and nature which may be imposed on, incurred by, or asserted against the ESI
Parties at any time to the extent such liability, loss or expense results from Client’s gross
negligence, willful misconduct, or Client’s noncompliance with any state or federal laws related
to the services provided for under this Agreement.
C. Whenever a party becomes aware of a claim that may be subject to the provisions of this Section,
the party shall notify the other party as soon as practicable and both parties shall reasonably
cooperate in the resolution of such matter.
D. IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID AND PAYABLE TO ESI UNDER THIS
AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING
RISE TO SUCH CLAIM. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES.
{MMO-00175783-1}