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EXTENT PERMITTED BY APPLICABLE LAW. Accela will
<br />not be responsible to the extent failure of the Service
<br />to operate as warranted is caused by or results from:
<br />(i) any modification to the Service other than a
<br />Supported Modification; (ii) combination, operation
<br />or use of the Service with Customer's or a third party's
<br />applications, software or systems; (iii) abuse, willful
<br />misconduct or negligence by anyone other than
<br />Accela or Accela's designee; (iv) use of the Service
<br />other than in accordance with the terms of this
<br />Agreement and/or the applicable Specifications and
<br />Accela documentation or (v) any of the SLC Exclusions
<br />(as defined in the Service Level Commitment).
<br />7. MUTUAL INDEMNIFICATION
<br />7.1. Indemnification by Customer. Customer will
<br />defend (or settle), indemnify and hold harmless
<br />Accela, its officers, directors, employees and
<br />subcontractors, from and against any liabilities,
<br />losses, damages and expenses, including court costs
<br />and reasonable attorneys' fees, arising out of or in
<br />connection with any third -party claim that: (i) a third
<br />party has suffered injury, damage or loss resulting
<br />from Customer's or any End User's use of the Service
<br />(other than any claim for which Accela is responsible
<br />under Section 7.2); or (ii) Customer or any End User
<br />has used the Service in a manner that violates these
<br />Terms or applicable law. Customer's obligations
<br />under this Section 7.1 are contingent upon: (a) Accela
<br />providing Customer with prompt written notice of
<br />such claim; (b) Accela providing reasonable
<br />cooperation to Customer, at Customer's expense, in
<br />defense and settlement of such claim; and (c)
<br />Customer having sole authority to defend or settle
<br />such claim.
<br />7.2. Indemnification by Accela. Accela will defend (or
<br />settle) any suit or action brought against Customer to
<br />the extent that it is based upon a claim that the
<br />Service, as furnished by Accela hereunder, infringes
<br />or misappropriates the Intellectual Property Rights of
<br />any third party, and will pay any costs, damages and
<br />reasonable attorneys' fees attributable to such claim
<br />that are awarded against Customer. Accela's
<br />obligations under this Section 7.2 are contingent
<br />upon: (a) Customer providing Accela with prompt
<br />written notice of such claim; (b) Customer providing
<br />reasonable cooperation to Accela, at Accela's
<br />expense, in the defense and settlement of such claim;
<br />and (c) Accela having sole authority to defend or
<br />settle such claim. THIS SECTION 7.2 STATES THE
<br />ENTIRE OBLIGATION OF ACCELA AND ITS LICENSORS
<br />Accela SaaS Master Services Agreement
<br />Form Approved by Legal (v.1 09/15/2017)
<br />WITH RESPECT TO ANY ALLEGED OR ACTUAL
<br />INFRINGEMENT OR MISAPPROPRIATION OF
<br />INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE.
<br />Accela will have no liability under this Section 7.2 to
<br />the extent that any third -party claims described
<br />herein are based on any combination of the Service
<br />with products, services, methods, or other elements
<br />not furnished by Accela, or any use of the Service in a
<br />manner that violates this Agreement or the
<br />instructions given to Customer by Accela.
<br />7.3. Mitigation Measures. In the event that (i) any
<br />claim or potential claim covered by Section 7.2 arises
<br />or (ii) Accela's right to provide the Service is enjoined
<br />or in Accela's reasonable opinion is likely to be
<br />enjoined, Accela may, in its discretion, seek to
<br />mitigate the impact of such claim or injunction by
<br />obtaining the right to continue providing the Service,
<br />by replacing or modifying the Service to make it non -
<br />infringing, and/or by suspending or terminating
<br />Customer's use of the Service with reasonable notice
<br />to Customer. In the case of a suspension or
<br />termination pursuant to this Section 7.3, Accela will
<br />refund to Customer a portion of fees prepaid by
<br />Customer for the then -current Subscription period,
<br />prorated to the portion of that Subscription period
<br />that is affected by the suspension or termination).
<br />8. LIMITATIONS OF LIABILITY. IN NO EVENT WILL
<br />ACCELA'S AGGREGATE LIABILITY TO CUSTOMER OR
<br />ANY THIRD PARTY ARISING OUT OF OR IN
<br />CONNECTION WITH THIS AGREEMENT OR FROM THE
<br />USE OF OR INABILITY TO USE THE SERVICE, WHETHER
<br />IN CONTRACT, TORT OR UNDER ANY OTHER THEORY
<br />OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY
<br />CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY
<br />SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER
<br />HEREUNDER IN THE TWELVE (12) MONTH PERIOD
<br />PRECEDING THE INCIDENT.
<br />8.1. Exclusion of Damages. NEITHER ACCELA NOR
<br />ANY OTHER PERSON OR ENTITY INVOLVED IN
<br />CREATING, PRODUCING, OR DELIVERING THE SERVICE
<br />WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
<br />EXEMPLARY OR CONSEQUENTIAL DAMAGES,
<br />INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF
<br />GOODWILL, SERVICE INTERRUPTION, COMPUTER
<br />DAMAGE OR SYSTEM FAILURE OR THE COST OF
<br />SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT
<br />OF OR IN CONNECTION WITH THIS AGREEMENT OR
<br />FROM THE USE OF OR INABILITY TO USE THE SERVICE,
<br />WHETHER BASED ON WARRANTY, CONTRACT, TORT
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<br />City of Hugo, MN
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