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<br />successors, and assigns against any Liabilities that are payable to any third party or incurred by SEW arising from any third-party claim, suit, or
<br />proceeding arising out of (a) SEW’s authorized use of the Customer Data or (b) any use of the Software by Customer and/or its Subscribers in violation
<br />of this Agreement.
<br />9.3. Indemnification Procedure. If an indemnified party becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2,
<br />as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the indemnified party by any third party (each an
<br />“Action”), the indemnified party will give the other party prompt written notice of such Action. The indemnified party will cooperate, at the expense of
<br />the indemnifying party, with the indemnifying party and its counsel in the defense and the indemnified party will have the right to participate fully, at its
<br />own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written
<br />consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
<br />10. LIMITATION OF LIABILITY.
<br />10.1. Liability Cap. UNDER NO CIRCUMSTANCES WILL SEW’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT
<br />(INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO SEW UNDER THIS
<br />AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
<br />10.2. Exclusion of Consequential Damages. IN NO EVENT WILL SEW BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
<br />INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PR OFITS OR LOST REVENUE, ARISING OUT OF OR RELATED TO
<br />THIS AGREEMENT.
<br />10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN
<br />CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; EVEN IF SEW IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE
<br />DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR
<br />ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 10, SEW’s liability will be limited to the maximum extent
<br />permissible by law. For the avoidance of doubt, SEW’s liability limits apply to SEW’s affiliates, SEWs, agents, sponsors, directors, officers, employees,
<br />consultants, and other representatives.
<br />10.4. Exceptions to Limitation of Liability. The foregoing limitations do not apply to any liability arising from SEW’s indemnification obligations under Section
<br />9.1 above.
<br />11. TERM & TERMINATION.
<br />11.1. Term. The Initial Term of this Agreement shall begin on the Effective Date and continue for the Term as stated in the applicable Order Form. Thereafter,
<br />unless this Agreement is earlier terminated in accordance with its terms, this Agreement will automatically renew for additio nal one (1) year terms
<br />(each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party delivers to the other party written notice of non -renewal
<br />at least ninety (90) days’ prior to the end of the then-current term.
<br />11.2. Termination. Either party may terminate this Agreement: (a) upon written notice to the other party if such other party materially breaches this Agreement
<br />and fails to cure such breach within thirty (30) days of written notice thereof; or (b) upon written notice to the other party if such other party becomes
<br />the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or assignment for the benefit of creditors
<br />(which, if involuntary, is not dismissed within sixty (60) days of its institution).
<br />11.3. Effects of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease all use of the Software and delete, destroy,
<br />or return all copies of the Documentation in its possession or control. SEW shall similarly delete, destroy, or return all relevant copies of Customer
<br />data which may be entitled to preservation based on state or federal data retention requirements. The following provisions wi ll survive termination or
<br />expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination (in addition to any fees owed under Section 11.3
<br />above, if applicable) and (b) Sections 1, 4, 5, 6, 8.3, 9, 10, 11 and 12.
<br />12. MISCELLANEOUS.
<br />12.1. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the
<br />other, and neither may make commitments on the other’s behalf.
<br />12.2. Force Majeure. No delay, failure, or default, other than a failure to pay fees, will constitute a breach of this Agreement to the extent caused by causes
<br />beyond the performing party’s reasonable control or acts of war, terrorism, earthquakes, other acts of God or of nature, stri kes or labor disputes,
<br />embargoes.
<br />12.3. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without SEW’s written consent. SEW
<br />may freely assign this Agreement. Except to the extent forbidden herein, this Agreement will be binding upon and inure to th e benefit of the Parties’
<br />respective successors and assigns.
<br />12.4. Severability. To the extent permitted by law, the Parties waive any provision of law that would render any clause of this Agreement invalid or
<br />unenforceable. In the event that a provision herein is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose
<br />to the maximum extent permitted by law, and the remaining provisions of this Agreement will continue in full force and effect.
<br />12.5. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation
<br />other than by an authorized representative in an explicit written waiver. No waiver of a breach hereof will constitute a waiv er of any other breach of
<br />this Agreement.
<br />12.6. Choice of Law & Jurisdiction: This Agreement will be governed by the laws of the State of California, without reference to any conflicts of law principles.
<br />The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of Orange County, California.
<br />12.7. Conflicts. Should this Agreement conflict with any other agreements, this Agreement will govern.
<br />12.8. Construction. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreem ent will not be construed in favor
<br />of or against either party by reason of authorship.
<br />12.9. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations,
<br />and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
<br />12.10. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such
<br />counterparts will constitute a single instrument.
<br />12.11. Modification. This Agreement may be modified from time to time by SEW, with Customer to be provided notice of no less than thirty (30) days prior to
<br />such Terms and Conditions taking effect.
<br />
<br />
<br />EXHIBIT A
<br />DocuSign Envelope ID: 6EE86165-D6F1-4646-9E79-5B5C46F230E7Docusign Envelope ID: 8554268A-3B16-47CD-A583-5329ACD47579
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