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e. Survival
<br /> Any Section of this Maintenance Agreement, which by its nature is intended to survive termination or expiration, shall survive the
<br /> termination or expiration of this Maintenance Agreement.
<br /> 6. Miscellaneous
<br /> a. Disclaimer of Warranties.
<br /> EXCEPT AS EXPRESSLY SET FORTH IN THIS MAINTENANCE AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED
<br /> WARRANTIES, CONDITIONS, OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
<br /> MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING OUT OF ANY
<br /> COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE PRACTICE.
<br /> b. No Consequential Damages.
<br /> NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL ITRON BE LIABLE UNDER ANY
<br /> CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR ANY
<br /> INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS
<br /> OR PROFITS)OR EXEMPLARY DAMAGES, EVEN IF ITRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br /> C. Limitation of Liability.
<br /> NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF ITRON AND ITS
<br /> AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY
<br /> WAY IN CONNECTION WITH THIS MAINTENANCE AGREEMENT—WHETHER UNDER CONTRACT LAW, TORT LAW,
<br /> WARRANTY OR OTHERWISE—SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS MAINTENANCE
<br /> AGREEMENT DURING THE MAINTENANCE YEAR IN WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE.
<br /> ITRON SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE THAN 2 YEARS AFTER
<br /> THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE.
<br /> d. Force Majeure.
<br /> Except for monetary obligations hereunder, neither Party will be responsible for any failure or delay in performing any obligation
<br /> hereunder if such failure or delay is due to a cause beyond the Party's reasonable control, including, but not limited to acts of God,
<br /> flood,fire,volcano,war,terrorist threats or actions,third-party suppliers, labor disputes or governmental acts.
<br /> e. Notices.
<br /> Any notice required or permitted under this Maintenance Agreement or required by law must be in writing and must be delivered in
<br /> person, by facsimile, by certified mail(return receipt requested),or by a nationally recognized overnight service with all freight charges
<br /> prepaid, to the address set forth on the signature page hereto. Notices will be deemed to have been given at the time of actual
<br /> delivery, if in person, or upon receipt(as evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either
<br /> Party may change its address for notices by written notice to the other Party in accordance with this Section. Notwithstanding the
<br /> foregoing, notice of renewal or non-renewal of Maintenance Services shall be sent to the email or other address set forth on the
<br /> signature page hereto.
<br /> f. Assignment.
<br /> Customer may not assign or transfer its interests, rights or obligations under this Maintenance Agreement by written agreement,
<br /> merger, consolidation, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any
<br /> attempt to assign this Maintenance Agreement by Customer shall be null and void.
<br /> g. Nonwaiver.
<br /> Any failure by either Party to insist upon or enforce performance by the other Party of any of the provisions of this Maintenance
<br /> Agreement or to exercise any rights or remedies under this Maintenance Agreement or otherwise by law shall not be construed as a
<br /> waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision, right or remedy in that or any
<br /> other instance;rather the provision, right or remedy shall be and remain in full force and effect.
<br /> h. Governing Law.
<br /> This Maintenance Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State
<br /> of Illinois without reference to Illinois conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods.
<br /> i. Confidentiality.
<br /> With respect to any information supplied in connection with this Maintenance Agreement and designated by either Party as
<br /> confidential, or which the recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the
<br /> recipient agrees to protect the confidential information in a reasonable and appropriate manner, and to use and reproduce the
<br /> confidential information only as necessary to perform its obligations under this Maintenance Agreement and for no other purpose. The
<br /> obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully
<br /> disclosed by a third party; (iv) independently developed; or(v)disclosed pursuant to a legal requirement or order. The recipient may
<br /> disclose the confidential information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and
<br /> non-use terms that are substantially similar to these terms. Itron recognizes and acknowledges that Customer is an Illinois municipal
<br /> corporation and as such is subject to the Illinois Freedom of Information Act and must comply with requirements of such.
<br /> I Intellectual Property.
<br /> Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related
<br /> to any product, software or deliverable provided in connection with the Maintenance Services are and will remain the exclusive
<br /> property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the
<br /> exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in
<br /> any such product,software or deliverable or Itron's confidential information other than rights granted in this Maintenance Agreement.
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