authorization; (c) Customer has combined the Service with software, hardware, system, data, or other materials not supplied or authorized
by Provider where the infringement or misappropriation relates to such combination, unless Provider expressly authorized such combination
or the combination was provided for in the Documentation; (d) the Loss is as a result of Content or Contact data; or (e} Customer continues
use of the Service after being provided modifications that would have avoided the alleged infringement. In the event Provider believes that
the Service is, or is likely to be, the subject of an infringement claim, Provider may, at its option, (1) procure for Customer the right to continue
using the Service under this Agreement, (2) replace or modify the Service so that it becomes non-infringing but substantially equivalent in
functionality and performance, or (3) if neither clause (1) or (2) are feasible in spite of Provider's reasonable efforts, terminate this Agreement
and refund a prorated portion of the Subscription Fees based on the days left in the Initial Term or then-current Renewal Term, less any
expenses for usage accrued prior to the date of termination. The foregoing obligations are Provider's only obligations and liability in
connection with infringement by the Service.
8.3. Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Provider and its Affiliates, licensors and
suppliers from and against all Losses arising out of: (i) Customer's breach of Sections 5 and 6; (ii) third party claims that Customer's Content
infringes on any intellectual property rights; or (iii) Customer's gross negligence or willful misconduct.
8.4. Indemnification Procedures. Each party seeking indemnification hereunder shall provide the other party with: (i) prompt written
notice of any claim for which indemnification is sought; (ii) complete control of the defense and settlement of such claim; and (iii) reasonable
assistance and cooperation in such defense at the indemnifying party’s expense. In any proceeding the indemnified party shall have the
right to retain, at its expense, its own counsel. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a
claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification
by the indemnifying party) without the indemnified party's written consent.
9. LIMITATION OF LIABILITY
9.1. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO BREACH
OF SECTION 5.2 or Section 5.3 (CUSTOMER OBLIGATIONS) OR SECTION 6 (CONFIDENTIALITY AND SECURITY) OR ANY
OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION AND RESPONSIBILITY): (a) INNO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOSS OF DATA, REVENUES, PROFITS OR OTHER ECONOMIC
ADVANTAGE, OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHER SIMILAR
DAMAGES OF ANY KIND OR NATURE, (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THE SERVICE OR THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF
EITHER PARTY, ITS AFFILIATES AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS EXCEED TWO (2) TIMES
THE FEES ACTUALLY PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS OF SERVICE PRIOR TO
THE DATE ON WHICH SUCH CLAIM AROSE.
10. GENERAL
10.1. Force Maieure. Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable
control of such party, including acts of God, acts of war, riots, acts of terror and other acts or omissions of third parties such as interruptions,
delays, or malfunctions of service by third-party service providers.
10.2. Dispute Resolution. Each party to this Agreement agrees that any dispute arising under this Agreement shall be submitted, to non-
binding mediation according to the rules and regulations of, and administered by, the commercial mediation division of the American
Arbitration Association, and that any agreement which is executed by both parties during such mediation may be enforced in any court of
competent jurisdiction. Notwithstanding anything herein, either party may seek injunctive relief and the enforcement of judgments in any court
of competent jurisdiction, no matter where located. If either party engages attorneys to enforce any rights out of or relating to this Agreement,
the prevailing party in any action to enforce or interpret this Agreement shall be entitled to recover any and all costs and expenses of any
nature including, without limitation, attorneys’ and experts’ fees, whether in arbitration, a court of first jurisdiction and any courts of appeal.
10.3. Governing Law/Venue. This Agreement shall be governed exclusively by the laws of the State of New Hampshire and any claim or
action brought relating to this Agreement shall be brought in Hillsborough County of New Hampshire Superior Court Southern Judicial District
or in the New Hampshire 9** Circuit Court of Nashua and not elsewhere.
10.4. Publicity. For the duration of this Agreement, Provider may use Customers name and logo on the Provider web site and in Provider's
collateral marketing materials identifying Customer as a purchaser of the Service. If Provider's expected use of Customer’s name and/or logo
includes more than basic identification of Customer, Provider shall provide Customer with a copy of such content for approval, such approval
not to be unreasonably withheld.
10.5. Survival of Terms. The rights and obligations of either party that by their nature would continue beyond the termination or expiration
of this Agreement shall survive termination or expiration of this Agreement. For example, the provisions of this Agreement regarding
indemnification and/or limitation of liability shall survive termination of this Agreement as to any cause of action arising under the Agreement.
10.6. Independent Contractor. Provider's relationship with Customer shall be that of an independent contractor, and nothing in this
Agreement shall be construed to create a partnership, joint venture, principal-agent, or employer-employee relationship. Neither party will
have or represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of
the other party.
ONSOLVE, LLC Page 4 of 6 Customer Initials
CONFIDENTIAL AND PROPRIETARY
December 2018 Form
