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9.2. By Customer.To the extent permitted by applicable law,Customer will defend PowerDMS from and against
<br /> claim,demand,suit or proceeding made or brought against PowerDMS(a)by a third party alleging that any Customer
<br /> Data infringes or misappropriates such third party's Intellectual Property Rights, (b) in connection with Customer's
<br /> violation of any applicable laws, or (c) in connection with a dispute between a User and Customer, in each case
<br /> provided that Customer is promptly notified of any and all such claims, demands, suits or proceedings and given
<br /> reasonable assistance and the opportunity to assume sole control over defense and settlement.
<br /> 9.3. Mitigation. If, due to a claim of infringement,the Services are held by a court of competent jurisdiction to
<br /> be or are believed by PowerDMS to be infringing, PowerDMS may,at its option and expense (a) replace or modify
<br /> the Services to be non-infringing provided that such modification or replacement contains substantially similar
<br /> features and functionality, (b)obtain for Customer a license to continue using the Services, or(c) if neither of the
<br /> foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide
<br /> Customer a refund of any prepaid,unused fees for the Services.
<br /> 9.4. Exclusive Remedy.This Section 9 states the indemnifying party's sole liability to,and the indemnified party's
<br /> exclusive remedy against,the other party for any type of claim described in this Section 9.
<br /> 10. Limitation of Liability.
<br /> 10.1. Exclusion of Certain Claims. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS
<br /> AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL EITHER PARTY HAVE ANY
<br /> LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, COST OF COVER OR SUBSTITUTE SERVICES,
<br /> PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY,ARISING OUT OF THIS
<br /> AGREEMENT, INCLUDING LOSS OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, EVEN IF SUCH PARTY HAS BEEN
<br /> ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, POWERDMS SHALL NOT BE LIABLE FOR THE
<br /> CRIMINAL ACTS OF THIRD PARTIES.
<br /> 10.2. Limitation of Liability. EXCEPT WITH REGARD TO LIABILITY FOR THE INDEMNITY OBLIGATIONS
<br /> UNDER SECTION 9 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS
<br /> AGREEMENT WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE SUM OF ALL
<br /> AMOUNTS REQUIRED TO BE PAID BY CUSTOMER TO POWERDMS IN CONNECTION WITH THIS AGREEMENT IN THE
<br /> 12 MONTH PERIOD PRECEDING THE DATE OF THE EVENT INITIALLY GIVING RISE TO SUCH LIABILITY. THE PARTIES
<br /> ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN
<br /> THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE PRICING AND OTHER TERMS SET FORTH IN
<br /> THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
<br /> 11. General Provisions
<br /> 11.1. Entire Agreement.This Agreement, Exhibit A (if applicable), and any Service Orders executed by
<br /> Customer(or deemed effective under Section 7.3)constitute the entire agreement and understanding between the
<br /> parties with respect to the subject matter hereof and supersede all prior or contemporaneous written,electronic or
<br /> oral communications, representations, agreements or understandings between the parties with respect thereto.
<br /> Any Service Order executed or amended,or any Subscription Term specified in any Service Order which is renewed
<br /> or otherwise extended,shall be subject to the terms and conditions of this Agreement. Except for the terms of any
<br /> Service Order executed by Customer, any additional, supplementary or conflicting terms supplied by either party
<br /> (whether in hard copy or electronic form),including those contained or referenced in any invoice,purchase order or
<br /> policies,are expressly rejected by each party and shall serve only the purpose of identifying the products or services
<br /> ordered.
<br /> 11.2. Government Entity Addendum.If Customer is a Government Customer,the Government Customer
<br /> Addendum(attached hereto as Exhibit A)is hereby incorporated into the Agreement.
<br /> 11.3. No Waiver. The failure of a party to enforce any right or provision in this Agreement will not
<br /> constitute a waiver of such right or provision.
<br /> 11.4. Assignment.This Agreement is not assignable,transferable or sublicensable by Customer except
<br /> with PowerDMS's prior written consent. PowerDMS may assign this Agreement without Customer's consent to a
<br /> parent,subsidiary,an acquirer of all or substantially all of the assets of PowerDMS or a successor by merger or other
<br /> business combination.This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and
<br /> their respective successors and permitted assigns.
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