10-079 - King County Metro Transit - 2011 ORCA Card Program

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(3) the deletion of, corruption of, or failure to store, any information transmitted to or generated by the Business Account's use of the ORCA Services or the use of said account's ORCA Business Cards; (4) failure of the Business Account to provide the Lead Agency with accurate information; and (5) failure by the Business Account to keep password or account details secure and confidential. b. The Lead Agency and each other ORCA Agency shall not be liable for, and the Business Account hereby holds each harmless from, any loss of use, loss of time, loss of profits, loss of privacy, loss of data, loss of goodwill, inconvenience, commercial loss, loss of anticipated savings, wasted management time or labor, or any special, consequential, general, indirect, incidental, or punitive damages or that are for failure to meet any duty (including without limitation any duty of lack of negligence or workmanlike effort), when such damages arise out of or are related to this Agreement or the ORCA Services, even if anyone in any of the ORCA Agencies has been advised of the possibility of such damages and even in the event of a tort (including negligence, strict or product liability) or violation of contract or policy. c. If anyone in any of the ORCA Agencies breaches any duty or agreement relating to the ORCA Services, the exclusive, aggregate remedy against the Lead Agency and each other ORCA Agency will be, at the option of the ORCA Agencies. (a) correction, substitution or replacement of all or part of the ORCA Services giving rise to the breach, or (b) a refund of the amount paid by the Business Account for the ORCA Service causing the damage, which amount will not exceed the damages (other than those excluded above) actually incurred by the Business Account in reasonable reliance. d The damage exclusions and limitations on liability in the Agreement shall apply even if any remedy fails for its essential purpose. 19.3 No Waiver. The Business Account agrees that if the Lead Agency does not exercise or enforce any legal right or remedy which is contained in the Agreement or under applicable law, this will not be taken to be deemed to be a waiver or modification of the Lead Agency's rights and remedies and that those rights or remedies will still be available to Lead Agency. 19 4 Governing Law and Forum. This Agreement and all provisions hereof shall be interpreted and enforced in accordance with, and governed by, the applicable law of the State of Washington and of the United States of America without regard to its conflict of laws provisions. The exclusive jurisdiction and venue for conducting any legal actions arising under this Agreement shall reside in either the Federal District Court or the State of Washington Superior Court, as applicable, that is located in the county in which the Lead Agency's primary administrative office is located. The Business Account hereby consents to personal jurisdiction and venue in said courts and waives any right which it might have to conduct legal actions involving the ORCA Agencies in other forums. 19.5 Attorneys' Fees and Costs. In the event of litigation between the parties related to Sections 4, 13 and 19 of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and reasonable litigation expenses and costs. 19.6 Survival. Sections 4, 5, 9, 13 and 19 shall survive and remain effective notwithstanding any termination of this Agreement. 19.7 The Business Account understands and agrees that the "ORCA" name and logos are trademarked and that it will not copy or use them and any other trade names, trade marks, service marks, logos, domain names, and other distinctive features or intellectual property of the ORCA Agencies without written permission. Passport Customer Agreement Page 10 of 17 City of Tukwila 1592 October 1, 2010 September 30, 2011