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Page 6 of 10 REV. 06/15/2024
<br />negotiations, as long as such settlement shall not include a financial obligation on Customer; and (iii) Customer
<br />provides Company with the information, assistance and authority to enable Company to perform Company’s
<br />obligations under this Section. In any action based on claim of infringement, Company may, at its option and
<br />own expense and as its entire obligation to Customer with respect to such claims, either: (1) procure the right
<br />for Customer to continue using the Products in accordance with the provisions of this Agreement; (2) make such
<br />alterations, modifications or adjustments to the Products so that the infringing Product becomes non‐infringing
<br />without incurring a material diminution in performance or function; (3) replace the Product with a non‐infringing
<br />substantially similar substitute; or (4) if neither (1), (2), nor (3) can be achieved after the exercise of commercially
<br />reasonable efforts, either Party may terminate the Agreement for the affected Product and Company shall issue
<br />a refund to Customer for any prepaid but unused fees. Company shall have no liability or obligations for an
<br />infringement claim pursuant to this Section to the extent that it results from: (a) modifications to the Products
<br />made by a party other than Company, if the claim would not have occurred but for such modifications; (b) the
<br />combination, operation or use of the Products with non‐Company equipment, devices, products or data, unless
<br />the claim would not have occurred but for the use of the Product in the combination, operation or use; (c) the
<br />use of an unsupported version of the Product; (d) use of the Product outside the scope of this Agreement or the
<br />documentation; (e) Company’s use of any designs, plans, instructions, specifications, diagrams or the like,
<br />provided by Customer; or (f) Customer’s failure to use all applicable enhancements and upgrades to the
<br />Products made available to Customer by Company, if the claim would not have occurred but for such failure.
<br />Nothing in this provision shall be construed as a limitation on Customer’s ability to retain legal counsel at its
<br />own expense to monitor the proceedings.
<br />
<br />8.2 Customer, at its sole expense, agrees to defend and indemnify Company against any third‐party claim that
<br />the data provided by Customer to Company, directly infringes a third‐party copyright, patent issued by the U.S.
<br />Patent and Trademark Office, or misappropriates a trade secret.
<br />
<br />8.3 INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO THE
<br />FAILURE TO PAY AMOUNTS PROPERLY OWED, BREACHES OF CONFIDENTIALITY, INDEMNITY OBLIGATIONS OR
<br />VIOLATIONS OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
<br />THE OTHER PARTY OR ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR
<br />ANY INDIRECT DAMAGES THAT ARISE FROM OR RELATE TO THIS AGREEMENT (INCLUDING LOST PROFITS, LOST
<br />DATA AND ANY OTHER INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES), WHETHER
<br />FORESEEABLE OR NOT AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />
<br />8.4 TOTAL LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO THE
<br />FAILURE TO PAY AMOUNTS PROPERLY OWED, BREACHES OF CONFIDENTIALITY, INDEMNITY OBLIGATIONS OR
<br />VIOLATIONS OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE CUMULATIVE
<br />LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY WARRANTY CLAIMS) WILL
<br />NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR
<br />OTHERWISE, THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY IN THE 12 MONTHS PRIOR
<br />TO THE EVENT THAT GAVE RISE TO LIABILITY. EXCEPT WITH RESPECT TO THE FAILURE TO PAY AMOUNTS
<br />PROPERLY OWED, BREACHES OF CONFIDENTIALITY, INDEMNITY OBLIGATIONS OR VIOLATIONS OF COMPANY’S
<br />INTELLECTUAL PROPERTY RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS
<br />UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY HERETO MORE THAN TWO YEARS AFTER THE
<br />CAUSE OF ACTION HAS OCCURRED.
<br />
<br />8.5 ALLOCATION OF RISK. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF
<br />LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE RISK BETWEEN THE
<br />PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
<br />EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS
<br />AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE
<br />FAILED OF THEIR ESSENTIAL PURPOSE.
<br />
<br />Docusign Envelope ID: CA8705DF-3575-4273-B3E5-0EF60EBEB3C1
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