NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. FURTHER,
EACH PARTY DISCLAIMS ALL LIABILITY AND
INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR
DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING
PROVIDERS.
41. indernnification.
11.1 Know@e4 indemnity Obligations. KnowBe4 will
defend and indemnify Customer frorn any and all claims,
losses, deficiencies, damages, abilities, costs, and
expenses (including but not limited to reasonable
attorneys’ fees) finally awarded against Customer, as
approved via a court-epproved settlement, or via binding
mediation or arbitration arising fram a claim by a third
party that Customer’s authorized use of a Product
infringes that third party's United States patent, copyright,
or trade secret rights. The foregoing indernnification
obligation of KnowBed is contingent upon Customer
promptly notifying KnowBe4 in writing of such claim
(provided the failure or delay in doing so shall not relleve
KnowBe4 from any obligations to indemnify Customer
except to the extent that such delay or failure materially
prejudices the defense of such claim), permitting KnowBe4
sole authority te control the defense or settlement of such
claim and providing KnowBed reasonable assistance (at
KnowBe4’s sole expense) in connection therewith. If a
claim of infringement under this Section occurs, or if
KnowBed determines a claim is likely to occur, KnowBe4
will have the right, in fits sole discretion, to either {)
procure for Customer the right or license to continue to
use the Products free of the infringement claim, or (i)
modify the Products te make them non-infringing, without
loss of material functionality. if neither of these remedies
is reasonably available to KnowBe4, KnowBe4 may, in its
sole discretion, immediately terminate this Agreement
and related Quote and, upon return of the infringing
Products from Customer, refund the fees paid for such
Products, prorated over twenty-four (24) months from
intial delivery of the Products to Customer.
Notwithstanding the foregoing, KnowBed will have no
obligatian with respect to any claim of infringement that is
based upon or arises out of (i) the use or combination of
the Products with any hardware, software, products, data,
or other materials not provided by KnowBe4, G0
modification or alteration of the Products by anyone other
than KnowBed4, UN} use of the Products in excess of the
rights granted in this Agreement, or (iv) any specifications
or other intellectual property provided by Customer
(collectively, the “Excluded Claims”). The provisions of this
Section state the sole and exclusive obligations and liability
of KnowBed and its licensors and suppliers for any claim of
intellectual praperty infringement arising out of or relating
to the Products or this Agreement, and are in lieu of any
implied warranties. of non-infringement, all of which are
expressly disclaimed.
11.2 Customer indemnity Obligations. Customer will
defend and indemnify KnowBed and hold it harmiess from
any and all claims, losses, deficiencies, darnages, liabilities,
costs, and expenses (including but not limited to
reasonable attorneys’ fees) incurred by KnowBed as a
result of any claim by a third party arising from {))
Customer's use of the Products in breach of this
Agreement, (i) KnowBed’s authorized use of the Customer
Data, or GH) the Excluded Claims. The foregoing
indemnification obligation of Customer is contingent upon
KnowBe4 promptly notifying Customer in writing of such
claim (provided the failure or delay in doing so shall not
relieve Customer from any obligations to indemnify
KnowBe4 except to the extent that such delay or failure
materially prejudices the defense of such claim),
permitting Customer sole authority te control the defense
or settlement of such claim, provided that Customer may
not settle any such claim unless it unconditionally releases
KnowBeé. of all liability, and providing Customer
reasonable assistance (et Customer’s sole expense) in
connection therewith.
12, Limitations of Liability.
12.1 NEITHER KNOWBE4 NOR ITS VENDORS AND
LICENSORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR
ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES,
BUSINESS, DATA, OR OTHER INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE,
INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY
KIND OR NATURE RESULTING FROM OR ARISING OUT OF
THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES
RENDERED HEREUNDER. THE TOTAL LIABILITY OF EACH
PARTY TO THE OTHER PARTY ARISING CUT OF THIS
AGREEMENT, THE PRODUCTS, AND ANY SERVICES
RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR
TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES
PAID OR PAYABLE HEREUNDER BY CUSTOMER FOR THE
PRODUCT OR SERVICE AS TO WHICH THE LIABILITY
RELATES, IN THE TWELVE (12) MONTHS PRIOR TO THE
FIRST EVENT GIVING RISE TO LIABILITY. The allocations of
liability in this Section represent the agreed, bargained-for
understanding of the parties and KnowBed’s
compensation hereunder reflects such allocations. The
liraitation of Hability and types of damages stated in this
Agreement are intended by the parties to apply regardless
of the form of lawsuit or claim a party may bring, whether
in tort. contract or otherwise, and regardless of whether
any liraited rernedy provided for in this Agreemertt fails of
its essential purpose.
