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J 1 ~ right to undertake, at the indemnifying Party's cost and expense, the defense, compromise or settlement of such claim, provided however, that such claim shall not be compromised or settled without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the indemnified Party assumes the defense of the claim, the indemnified Party will keep the indemnifying Party timely informed of the progress of any such defense, compromise or settlement. 10. M15CELLANEOUS 10.1 Independent Contractors. Nothing contained in this Agreement or done in pursuance hereof shall be deemed to constitute (i) a joint venture between Licensee or its Affiliates and PTFS, or (ii) any Party hereto the agent of the other Party for any purpose whatsoever. 10.2 Construction. If any provision of this Agreement is held to be unenforceable for any reason, it shall not affect the validity or enforceability of the remaining portions hereof, provided that with respect to any material provision deemed to be unenforceable the Parties shall negotiate in good faith to achieve a new legally enforceable provision which most closely approximates the original intent of the provision declared unenforceable or illegal, 10.3 Amendments. This Agreement may not be modified except by written agreement signed by authorized representatives of both Parties. 10.4 Notices. Notices shall be deemed given when delivered to the intended recipient at its address set forth above, or such other address as may be furnished by either Party hereafter, sent via courier or by U.S. Mail, prepaid, registered or certified with return receipt requested, or by facsimile transmission with confirmation, and followed by registered mail or other hard copy. 10.5 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors or assigns. This Agreement and the rights and obligations hereunder may not be assigned in whole or in part by either Party without the other Party's prior written consent. Notwithstanding the foregoing, PTFS may assign this Agreement to any parent, affiliate or subsidiary or purchaser of its stock or assets without the consent of Licensee, and may subcontract some or all of the Services. Any assignment or attempted assignment of this Agreement not permitted by this Section will be void. 10.6 Waiver. Either Party's waiver of any instance of the other's non-compliance with this Agreement shall not be deemed a waiver of any future non-compliance. 10.7 Force Majeure. PTFS shall not be liable for any delay or failure to perform any obligation hereunder if such delay or failure arises directly or indirectly out of any act of God, nature or a public enemy, an earthquake, flood, fire, government order, riot, civil disobedience, labor strife, shortage of supplies or personnel, interruption of communication or transportation, or any other cause beyond PTFS's reasonable control. 10.8 Governing Law and Dispute Resolution. The Parties agree that the interpretation, application and construction of this Agreement shall not be governed by the Uniform Computer Information Transactions Act ("UCITA") as enacted in any State, and the Parties hereby opt out of UCITA. All disputes shall be resolved by binding arbitration pursuant to the commercial rules of the American Arbitration Association, provided, however, that PTFS shall be entitled, at its option, to equitable relief to enjoin any breach of this Agreement by Licensee, without the requirement of posting bond or proving damages. The arbitrator shall be shall be a retired judge or a business attorney with at least 10 years experience. 10.9 Integration. This Agreement sets forth the entire agreement and understanding of the Parties with respect to the subject matter of this license, and merges all proposals, prior discussions or prior agreements between them, except as regards any agreement which Licensee and Reseller may have between them and to which agreement PTFS is not a party. 10.10 Allocation of Risk. The sections on limitation of liability, warranties and disclaimer of warranties allocate the risks in the Agreement between the Parties. This al-ocation is an essential element of the basis of the bargain between the Parties. City of San Leandro -Page S-18 CONFIDENTIAL AND PROPRIETARY