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12.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this
<br /> Agreement, the other Party may consider the non-performing Party to be in default (unless a Force
<br /> Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written !i
<br />, and detailed notice of default. Except for a default by Customer for failing to pay any amount when due i
<br />� under this A reement which must be cured immediatel the defaultin Part will have thirt 30 da s '
<br /> 9 Y, 9 Y Y ( ) Y �
<br /> after receipt of the notice of default to either cure the default or, if the default is not curable within thirty I
<br />' (30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan
<br /> immediately after receipt of notice by the other Party that it approves the plan. If Customer is the
<br /> defaulting Party, Motorola may stop work on the project until it approves the Customer's cure plan.
<br /> 12.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
<br /> 12.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of
<br /> this Agreement. In the event of termination for default, the defaulting Party will promptly return to the non-
<br /> defaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates
<br /> this Agreement as permitted by this Section, and completes the System through a third party, Customer
<br /> may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to
<br /> a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price.
<br /> Customer wiil mitigate damages and provide Motorola with detailed invoices substantiating the charges.
<br /> 12.3. TERMINATION FOR LACK OF FUNDING. Customer may terminate this Agreement(in whole or
<br /> part) in the event Customer has exhausted the funds it has received from the ETSB or otherwise to pay
<br /> for this Agreement, exhausted the funds it has allocated to pay for this Agreement (20% of the Contract
<br /> Price), does not receive Public Safety Interoperable Communication funding, and is unsuccessful finding
<br /> alternative funding sources despite using best efforts to do so (collectively"Lack of Funding"). To
<br /> exercise this right, Customer must provide to Motorola formal written notice at least thirty (30) days in
<br /> advance of the effective date of the termination. The notice must explicitly state the effective date of the
<br /> termination and whether the contract termination is in whole or in part, and if in part, which part is being
<br /> terminated. If Customer exercises this right to terminate for Lack of Funding, it will be liable to pay
<br /> Motorola for the portion of the Contract Price attributable to the Equipment and/or Software delivered, and
<br /> all services performed, on or before the effective date of the termination. If the portion of the Contract
<br /> Price and/or the recoverable costs and expenses attributable to the termination of the Agreement are not
<br /> readily ascertainable, Customer will be liable to pay Motorola for the reasonable value of such Equipment,
<br /> Software, services, costs and expenses.
<br /> Section 13 INDEMNIFICATION
<br /> 13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless
<br /> from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death,
<br /> or direct damage to tangible property which may accrue against Customer to the extent it is caused by
<br /> the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties
<br /> under this Agreement, if Customer gives Motorola prompt, written notice of any such claim or suit.
<br /> Customer will cooperate with Motorola in its defense or settlement of the claim or suit. This section sets
<br /> forth the full extent of Motorola's general indemnification of Customer from liabiiities that are in any way
<br /> related to Motorola's performance under this Agreement.
<br /> 13.2. GENERAL INDEMNITY BY CUSTOMER. Customer will indemnify and hold Motorola harmless
<br /> from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death,
<br /> or direct damage to tangible property which may accrue against Motorola to the extent it is caused by the
<br /> negligence of Customer, its other contractors, or their employees or agents, while performing their duties
<br /> under this Agreement, if Motorola gives Customer prompt, written notice of any the claim or suit.
<br /> Motorola will cooperate with Customer in its defense or settlement of the claim or suit. This section sets
<br /> forth the full extent of Customer's general indemnification of Motorola from liabilities that are in any way
<br /> related to Customer's performance under this Agreement.
<br /> 13.3. PATENT AND COPYRIGHT INFRINGEMENT.
<br /> CSA.NoESS.FINAL.4-8-08 7
<br /> Motorola Contract No. 08-17033/LF
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