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<br />11) ACCESS
<br />a) Customer agrees to pcrmit and arrange full access to the Premises necessary for BPS employees to perform the services set forth in this Agreement
<br />and will make available a reasonable amount of secure space for storage by BPS of repair parts as necessary.
<br />b) Customer rcpresents and warrants the Customer's Prcmises and conditions to be encountercd by BPS at Customer's Premises and in areas where
<br />work is to be pcrformcd shall (i) bc in compliance with all applicable federal, state and local laws, rules, and regulations, (ii) be safe and non-
<br />hazardous, (iii) not contain, present or cxpose BPS representatives to hazardous materials or hazardous substances. In the event of breach of the
<br />foregoing, BPS may immediatcly suspend work until Customer has promptly corrected such condition(s) at Customer's expense. Customer shall
<br />indemnify BPS from any breach of the represenlations, warrantics, or covenants contained in this subsection, BPS makes no representations as to
<br />the presencc or absence of hazardous materials,
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<br />12) EXCLUSIONS
<br />a) This Agrecment excludcs damages arising from Customer or third party negligencc, abuse, accident, theft or unexplained loss, connection to
<br />foreign current, firc, watcr, wind, storms, lightning, act of God or public enemy, Customer's failure to provide a suitable operating environment
<br />(including isolated ground, dedicated electric source, circuit and power, air-conditioning, humidity, heat and security) per manufacturer's
<br />specifications, failures or changcs required and resulting from local exchange company, interexchange carrier, power companies, signal carriers,
<br />and other transmission providers, hardware additions that exceed software capacity, unauthorized attachments or modifications, or improper
<br />wiring, grounding, installation, repair or alteration of the System by anyone other than BPS, software changes or attempted software changes in the
<br />Systcm by persons unauthorized by BPS,
<br />b) At BPS's option, this Agreement shall terminate and be of no further force and effect if, without BPS's permission, Customer makes any
<br />modifications, rclocates, or rearrangcs the System, or permits any person or company other than BPS to service the System, Customer hereby
<br />acknowledges that Moditications performed by unauthorized distributors may result in a denial of support services from the manufacturer of the
<br />System.
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<br />13) DEFAULT.
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<br />If any Party, through any cause within its reasonable control, breaches the terms of this agreement or otherwise fails to fulfill its obligations in a timely
<br />manner or othcrwise violates any of the covenants, agreements or stipulations material to this agreement, such breach shall constitute a default. The non-
<br />breaching Party shall notify the breaching Party of the default and grant the breaching Party ten (10) days to cure such default. If the default remains
<br />uncurcd after the ten (10) days curing period elapses, the non-breaching Party may terminate this agreement. If Customer fails to pay the amounts due undcr
<br />this Agreement or any other agrecment with BPS, or (ii) breaches this Agreement, BPS may, in addition to all other remedies available to it at law or in
<br />equity, suspend its service obligations, and terminate this Agreement or furnish service on a time and materials basis, C.O,D, In the event of BPS's non-
<br />perfonnancc of this Agrecment, Customer may cancel this Agrcement and receive a refund for the unused portion of the Servicc Fee.
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<br />14) A TrORNEY'S FEES. In the event of any legal action brought to enforce this Agreement, the prevailing party shall be entitled to a reimbursement of its
<br />reasonable attorney's Ices and costs incurred at both trial and on appeal.
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<br />15) FORCE MAJEURE. Neithcr party hercto shall be liable for thc failure to perform any of its obligations under this Agrcement if such failure is caused by
<br />the occurrence of any force mf\ieure beyond Ihe rcasonable control of such party, including without limitation, fire, flood, strikcs and other industrial
<br />disturbances, failure of supply or supplicrs. failure of transport. accidents, war, riots, insurrections, acts of God or orders of governmcntal agencies.
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<br />16) RELA TIONSHIP OF PARTIES. Parties agree that BPS is not an employee of the Buyer, but is retained solely as an independent contractor and as such,
<br />neither BPS or its agents are cntitled to any benefits granted to Customer's officials, officers and employces,
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<br />17) NOTICES. All notices and communications hereunder shall be in writing and shall be deemed given when sent postage prepaid by rcgistered or certified
<br />mail, return receipt requested and, if intended for the Customer to A. John Szerlag, City Manager, with a copy to Hans Ottinot, City Attorney, City of
<br />Sunny Isles Bcach, 18070 Collins Avenue, Sunny Isles Beach. Florida 33160, and, if intended for BPS, shall be addressed to BEAR PAW SYSTEMS,
<br />INC., 21961 U.S. 19 North, Ccarwatcr, Florida 33765.
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<br />18) MISCELLANEOllS
<br />a) If customer issues a purchase order for its own internal purposes, Customer agrees that only the terms and conditions of this Agreement apply,
<br />and agrees to refcr to this Agrcement as the govcrning document on the face of such purchase ordcr. Conflicting terms on a Customer's purchase
<br />order or similar document used to order a System, or portions thereof, are null and void; b) BPS reserves the right to subcontract any and all of the
<br />work to be performed by it under this Agrecment. Should BPS subcontract any or all of the work required by this Agrcement to a third party, BPS
<br />shall not bc relieved of its duty 10 pcrform in accordance with the terms and conditions of this Agreement and shall agree to guarantee thc service
<br />provided by thc assigned sub-contraclor; c) This Agreement is not assignablc by Customer without the prior consent of BPS. Any attempt to
<br />assign any of the rights, duties or obligations undcr this Agreement without such consent will, at BPS's option, be deemed void or a material
<br />default or accepted in BPS's sole discrction; d) The waiver by cither party of any default will not operate as a waiver of any subsequent dcfault; e)
<br />BPS's obligation is contingent upon a credit report satisfactory to BPS and correct arithmetic calculations of quantity and price; I) This Agreement
<br />superscdes all prior or contemporaneous proposals, communications and negotiations, both oral and written, and constitutes the entire Agreement
<br />betwecn BPS and Customer with respect to the service of the System. Any representations, warranties or statements made by an employee,
<br />salesperson, or agent of BPS and not expressed in this Agreement are not binding upon BPS; g) If any court holds any portion of this Agreement
<br />unenforceable, the rcmaining languagc shall not be effected; h) Any modification must be in writing and executed by an authorized representative
<br />of the party against whom enforccment is sought: i) No action, regardless of form, arising out of this Agreement may bc brought by either party
<br />more than one ycar after thc cause of action has accrucd; j) This Agrecment is deemed made and GOVERNED BY THE LAWS OF THE STATE
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