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109738\153265\46611157.8
<br />of claims arising from such Security Incident that
<br />Selectron has consented to (collectively, “Losses”). If
<br />the forensic investigator determines that the Security
<br />Incident was not solely caused by Selectron, then
<br />Selectron will have no obligation to defend Licensee
<br />and Selectron will only indemnify and hold harmless
<br />Licensee for Losses proportionate to Selectron’s
<br />comparative fault in causing the Security Incident.
<br />9.4 Security Related Exclusions.
<br />Selectron shall have no liability or obligation to defend
<br />or indemnify Licensee with respect to any Losses
<br />caused by Licensee’s breach of Sections 8.8 or 8.9 or
<br />any Security Incident to the extent caused in whole or
<br />in part by an act or omission of Licensee or any third
<br />party (other than Selectron’s subcontractors) or any of
<br />their affiliates, employees, directors, officers, agents,
<br />or contractors (other than Selectron), including
<br />without limitation any of the following acts or
<br />omissions: (a) their loss of control of any device, (b)
<br />their failure to maintain the confidentiality of log-in
<br />credentials, (c) their transmission of data via methods
<br />that are not secure, (d) their failure to maintain
<br />systems and environments that are compatible with
<br />any Update, (e) their violation of the applicable terms
<br />of this Agreement or any applicable laws, regulations,
<br />or industry standards, or (f) any vulnerability in their
<br />environment, systems, hardware, software, or physical
<br />or administrative security safeguards or procedures,
<br />including without limitation any vulnerability in the file
<br />transfer protocol maintained by Licensee pursuant to
<br />Section 8.8.
<br />9.5 Conditions for Indemnification.
<br />Selectron’s indemnification obligations hereunder
<br />shall apply only if (a) Licensee notifies Selectron in
<br />writing of a claim promptly upon learning of or
<br />receiving the same; and (b) Licensee provides Selectron
<br />with reasonable assistance requested by Selectron, at
<br />Selectron’s expense, for the defense and settlement, if
<br />applicable, of any claim. Licensee’s failure to perform
<br />any obligations or satisfy any conditions under this
<br />Section 9.5 shall not relieve Selectron of its obligations
<br />hereunder except to the extent that Selectron can
<br />demonstrate that it has been materially prejudiced as
<br />a result of such failure.
<br />9.6 Control of Defense. After
<br />receipt of notice of a claim, Selectron shall be entitled,
<br />if it so elects, at its own cost, risk and expense (a) to
<br />take control of the defense and investigation of such
<br />lawsuit or action; and (ii)to employ and engage
<br />attorneys of its own choice to handle and defend the
<br />same; provided, however, that Licensee’s consent shall
<br />be required for any settlement that does not include a
<br />full release of all claims. If Selectron fails to assume the
<br />defense of such claim within ten (10) business days after
<br />receipt of notice of the claim, Licensee will (upon
<br />delivering notice to such effect to Selectron) have the
<br />right to undertake, at Selectron’s cost and expense, the
<br />defense, compromise or settlement of such claim on
<br />behalf of and for the account and risk of Selectron;
<br />provided, however, that such claim shall not be
<br />compromised or settled without the written consent of
<br />Selectron. The party that assumes control of the defense
<br />of the claim will keep the other party reasonably informed
<br />of the progress of any such defense, compromise or
<br />settlement. Notwithstanding the foregoing, Licensee shall
<br />be entitled to conduct its own defense at the cost and
<br />expense of Selectron if Licensee establishes that the
<br />conduct of its defense by Selectron would reasonably be
<br />likely to prejudice materially Licensee due to a conflict of
<br />interest between Licensee and Selectron; and provided
<br />further that in any event, Licensee may participate in such
<br />defense at its own expense.
<br />9.7 No Other Indemnities.
<br />Notwithstanding any terms added or incorporated into
<br />this Agreement to the contrary, or any other indemnities
<br />or similar provisions in purchase orders or other
<br />documents between the parties, even if signed by
<br />Selectron, Selectron only agrees to defend, indemnify, or
<br />hold harmless Licensee as expressly provided in this
<br />Section 9 and in Section 12.18 of this Agreement,
<br />regardless of whether the purchase order or other
<br />document states that it controls over this Agreement, and
<br />Selectron hereby expressly objects and does not agree to
<br />any other obligations to defend, indemnify, or hold
<br />harmless Licensee, even if contained in a writing signed
<br />by Selectron.
<br />10. Limitation of Liability
<br />10.1 Limited Remedy. EXCEPT AS
<br />EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM
<br />EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT
<br />SHALL SELECTRON OR ITS SUPPLIERS OR LICENSORS BE
<br />LIABLE FOR, OR BE OBLIGATED TO INDEMNIFY LICENSEE
<br />FOR, ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF
<br />USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR
<br />INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
<br />EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR
<br />OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO
<br />THIS AGREEMENT OR THE SUBJECT MATTER HEREOF,
<br />EVEN IF SELECTRON HAS BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
<br />10.2 Maximum Liability.
<br />Notwithstanding anything in this Agreement to the
<br />contrary or the failure of essential purpose of any limited
<br />remedy or limitation of liability, Selectron’s entire liability
<br />arising from or relating to this Agreement or the subject
<br />Docusign Envelope ID: 387D777D-8080-8C8A-81D9-2D8903B7172D
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