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109738\153265\46611157.8
<br />matter hereof, under any legal theory (whether in
<br />contract, tort or otherwise), shall not exceed the
<br />amounts actually received by Selectron from Licensee
<br />hereunder in the twelve (12) months immediately
<br />preceding the action that gave rise to the claim.
<br />Licensee acknowledges that the Service Fees reflect the
<br />allocation of risk set forth in this Agreement and that
<br />Selectron would not enter into this Agreement without
<br />the limitations on liability set forth in this Agreement.
<br />10.3 Applicability. Notwithstanding
<br />any terms added or incorporated into this Agreement
<br />to the contrary, to the extent the terms of a purchase
<br />order or any other document between the parties or
<br />provided by Licensee, even if signed by Selectron, are
<br />inconsistent or conflict with the limits on and
<br />exclusions of liability in this Section 10, the terms in
<br />this Section 10 shall control, and this Section 10 shall
<br />apply to all documents between the parties, and
<br />control over all documents between the parties,
<br />irrespective of any terms regarding order of
<br />precedence or anything else otherwise to the contrary.
<br />11. Term and Termination
<br />11.1 Term. The term of this
<br />Agreement shall commence on the Effective Date and
<br />continue for an initial period of five (5) years therefrom
<br />(the “Term”). If Licensee cancels prior to the end of the
<br />Initial Term of five (5) years, all fees for the Initial Term
<br />of this Agreement that are unpaid will become
<br />immediately due.
<br />11.2 Termination for Default. If
<br />either party materially defaults in any of its obligations
<br />under this Agreement, the non-defaulting party, at its
<br />option, shall have the right to terminate this
<br />Agreement by written notice to the other party unless,
<br />within sixty (60) calendar days after written notice of
<br />such default, the defaulting party remedies the
<br />default, or, in the case of a default which cannot with
<br />due diligence be cured within a period of sixty (60)
<br />calendar days, the defaulting party institutes within
<br />the sixty (60) day-period substantial steps necessary to
<br />remedy the default and thereafter diligently
<br />prosecutes the same to completion. Notwithstanding
<br />anything herein to the contrary, Selectron may
<br />immediately suspend any Authorized User or End
<br />User’s access to the Licensed Software and Customer
<br />Tools if Selectron determines in its reasonable
<br />discretion that such Authorized User or End User’s use
<br />of or access to the Licensed Software and/or Customer
<br />Tools breaches this Agreement, violates applicable
<br />law, or could cause harm to the Licensed Software or
<br />interfere with Selectron’s control over the Licensed
<br />Software or its ability to provide the Licensed Software
<br />to other customers. If Licensee fails to cure the foregoing
<br />breach or concern within seventy-two (72) hours,
<br />Selectron may terminate the Authorized User or End
<br />User’s access to the Licensed Software and Customer
<br />Tools. Licensee shall notify Selectron within twenty-four
<br />(24) hours of Licensee’s becoming aware of any breach
<br />(other than by Selectron) of the terms and conditions of
<br />this Agreement, including, without limitation, any breach
<br />of Sections 2.2, 5 or 6.
<br />11.3 Termination for Bankruptcy.
<br />Either party may terminate this Agreement if the other
<br />party (a) becomes insolvent; (b) fails to pay its debts or
<br />perform its obligations in the ordinary course of business
<br />as they mature; (c) is declared insolvent or admits its
<br />insolvency or inability to pay its debts or perform its
<br />obligations as they mature; or (d) becomes the subject of
<br />any voluntary or involuntary proceeding in bankruptcy,
<br />liquidation, dissolution, receivership, attachment, or
<br />composition, or makes a general assignment for the
<br />benefit of creditors, provided that, in the case of an
<br />involuntary proceeding, the proceeding is not dismissed
<br />with prejudice within sixty (60) days after the institution
<br />thereof.
<br />11.4 Effect of Termination. Upon the
<br />expiration or termination of this Agreement, all rights and
<br />licenses granted to Licensee hereunder shall immediately
<br />and automatically terminate. Within ten (10) days after
<br />any termination or expiration of this Agreement, Licensee
<br />shall, at its sole expense, return to Selectron (or destroy,
<br />at Selectron’s sole election) all Licensed Software and
<br />Proprietary Information of Selectron (and all copies,
<br />summaries, and extracts thereof) then in the possession or
<br />under the control of Licensee and its current or former
<br />employees. Licensee shall furnish to Selectron an affidavit
<br />signed by an officer of Licensee certifying that, to the best
<br />of its knowledge, such delivery or destruction has been
<br />fully effected. Termination of this Agreement by either
<br />party shall not act as a waiver of any breach of this
<br />Agreement and shall not act as a release of either party
<br />from any liability for breach of such party’s obligations
<br />under this Agreement. Neither party shall be liable to the
<br />other for damages of any kind solely as a result of
<br />terminating this Agreement in accordance with its terms.
<br />Either party’s termination of this Agreement shall be
<br />without prejudice to any other right or remedy that it may
<br />have at law or in equity, and shall not relieve either party of
<br />liability for breaches occurring prior to the effective date of
<br />such termination. Any provisions that would reasonably be
<br />expected by the parties to survive termination of this
<br />Agreement shall survive such termination, including without
<br />limitation the provisions of the EULA and Sections 1
<br />(“Definitions”), 2.2 (“Software Restrictions”), 2.3 (“Data
<br />Restrictions”), 2.4 (“Rights in Aggregate Data”), 4 (“Fees
<br />Docusign Envelope ID: 387D777D-8080-8C8A-81D9-2D8903B7172D
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