Common use of Limitation of Liability EXCEPT Clause in Contracts

Limitation of Liability EXCEPT. FOR (a) A BREACH BY CUSTOMER OF SECTION 2, (b) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (c) TO THE EXTENT PERMITTED BY APPLICABLE LAW (THE “EXCLUDED MATTERS”), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST OF PROFITS; and (v) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAYABLE FOR THE APPLICABLE SERVICE(S) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.

Limitation of Liability EXCEPT. FOR (a) A BREACH BY CUSTOMER CLAIMS INVOLVING CONFIDENTIALITY OR INFRINGEMENT, NEITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH ANY CLAIMS ARISING OUT OF SECTION 2, (b) INFRINGEMENT OR MISAPPROPRIATION RELATING TO THIS AGREEMENT OR THE USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTSAPPLIANCE OR SOFTWARE SHALL BE MORE THAN THE LESSER AMOUNT OF (1.) THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT, INCLUDING TRADE SECRETSPLUS THE AMOUNT OF SUPPORT FEES WHICH HAVE BEEN PAID OR WILL BE PAID DURING THE FIRST YEAR OF THIS AGREEMENT, OR (c2.) ONE MILLION DOLLARS ($1,000,000). THIS LIMIT, WHICH INCLUDES ALL COSTS AND FEES ARISING OUT OF ANY SUCH CLAIM, SHALL APPLY TO ANY AND ALL CLAIMS REGARDLESS OF THE EXTENT PERMITTED BY APPLICABLE LAW (THE “EXCLUDED MATTERS”), LEGAL THEORY ON WHICH THEY ARE BASED. NEITHER PARTY (NOR VORMETRIC’S LICENSORS) SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR LOST PROFITS OR TO ANY OTHER PERSON FOR ANY INDIRECTCONSEQUENTIAL, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSESINDIRECT, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST OF PROFITS; and (v) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE OF ANY OR ALL REGARDLESS OF THE SERVICESLEGAL THEORY ON WHICH THEY ARE BASED, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY EVEN IF THALES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT AND WILL APPLY EVEN IF THE EXCLUDED MATTERSABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. IN ADDITION, THE TOTAL CUMULATIVE THALES WILL HAVE NO LIABILITY TO LICENSEE UNDER ANY OF EITHER PARTY ARISING OUT SECTIONS 12 OR 17 OF THIS AGREEMENT AND/AGREEMENT, OR UNDER THE TERMINATION THEREOFSUPPORT SCHEDULE, SHALL BE LIMITED IF LICENSEE NEGLECTS TO THE SUM INSTALL WITHIN A REASONABLE TIME PERIOD ANY FAILURE CORRECTION SOFTWARE DELIVERED TO LICENSEE, OR ANY UPDATE OR RELEASE OF THE AMOUNTS PAYABLE FOR SOFTWARE MADE GENERALLY AVAILABLE AFTER THE APPLICABLE SERVICE(SEFFECTIVE DATE THAT WOULD HAVE AVOIDED OR MITIGATED THE CLAIM. For purposes of clarification, the foregoing limitations will apply to any obligation of Thales, if any, which may be deemed to apply under Section 17 (“Indemnification and Infringements”), to indemnify or hold harmless Licensee from any internal costs incurred by Licensee (i) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.for loss of time or profit as a result of defense of the third party claim,

Limitation of Liability EXCEPT. AS MAY BE DESCRIBED IN AN APPLICABLE SERVICE DESCRIPT ION OR IN A SERVICE AGREEMENT FOR PROJECT SERVICES, PROVIDER’ LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND WILL NOT EXCEED THE GREATER OF (a1) THE PROCEEDS OF ANY PROVIDER’S PROFESSIONAL LIABILITY INSURANCE MAINTAINED BY PROVIDER UNDER ITS APPLICABLE INSURANCE POLICIES, TOGETHER WITH ANY SELF-INSURED RETENTION AMOUNTS IN CONNECTION WITH THOSE POLICIES, OR (2) THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT AND ALL SERVICE DESCRIPTIONS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM. IN THE EVENT OF AN INSURANCE COVERAGE DISPUTE, PROVIDER IS NOT REQUIRED TO DISPUTE THE COVERAGE DETERMINATION AND IS NOT REQUIRED TO FILE A BREACH BY CUSTOMER OF SECTION 2, (b) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (c) DECLARATORY JUDGMENT ACTION. IN NO EVENT IS EITHER PARTY TO THE EXTENT PERMITTED BY APPLICABLE LAW (THE “EXCLUDED MATTERS”), NEITHER PARTY SHALL BE HELD LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECTINCIDENTAL, CONSEQUENTIAL, SPECIAL, CONSEQUENTIAL INDIRECT OR INCIDENTAL LOSSES, PUNITIVE DAMAGES OR EXEMPLARY DAMAGESCLAIMS, INCLUDING BUT NOT LIMITED TOTO LOST PROFITS, THOSE ARISING OUT OF OR RELATING TO: (i) LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA; (ii) , LOSS FROM INTERRUPTION OF BUSINESS, LOSS OF INCOME; (iii) LOSS PROGRAMS OR INFORMATION, AND THE LIKE THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, THE SERVICES NOT MEETING YOUR REQUIREMENTS OR EXPECTATIONS, OMISSIONS, TRANSLATIONS AND SYSTEM WORDINGS, FUNCTIONALITY OF OPPORTUNITY; (iv) LOST FILTERS, MIGRATION ISSUES, INTERRUPTIONS, DELETION OF PROFITS; and (v) FILES OR DIRECTORIES, HARDWARE FAILURES, UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OF BACKUPS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, SECURITY BREACH, OR NONTHIRD-PERFORMANCE PARTY SEVICE FAILURES, EVEN IF PREVIOUSLY ADVISED OF ANY OR ALL THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE SERVICES, FORM OF ACTION IS IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (OR OTHERWISE. PROVIDER WILL NOT BE LIABLE FOR ANY KIND OF AUTHORIZED ACCESS OR ANY HARM THAT MAY BE CAUSED BY YOUR ACCESS TO THIRD-PARTY APPLICATION PROGRAMMING INTERFACES OR THE EXECUTION OR TRANSMISSION OF MALICIOUS CODE OR SIMILAR OCCURRENCES, INCLUDING NEGLIGENCE)WITHOUT LIMITATION, DISABLING DEVICES, DROP DEAD DEVICES, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, TROJAN HORSES, WORMS, VIRUSES, HACKERS, PHISHERS, CRYPTO-LOCKERS, RANSOMWARE, AND SIMILAR MECHANISMS. YOU AGREE THAT THE TOTAL LIABILITY OF PROVIDER AND YOUR SOLE REMEDY FOR ANY CLAIMS REGARDING THE SERVICES UNDER THIS AGREEMENT, INCLUDING ANY SCHEDULE, OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE OTHERWISE IS LIMITED TO THE SUM OF THE AMOUNTS PAYABLE FOR THE PROCEEDS IN SECTION APPLICABLE SERVICE(SINSURANCE COVERAGE. Provider agrees that any Client Data remains the property of Client and/or its end user or other third-party. Provider agrees that it will comply with all applicable United States data privacy laws that the Services are subject to and as stated herein. The California Consumer Privacy Act (“CCPA”) DURING THE TWELVE becomes effective January 1, 2020. Once effective, Provider shall comply with all aspects of CCPA by implementing and maintaining reasonable security procedures and practices to protect Personal Information as defined under CCPA, including encrypting Personal Information from unauthorized access, exfiltration, theft or disclosure. Provider shall be prohibited from selling, retaining, using or disclosing the Personal Information outside of the direct business relationship with Client’s regulated under CCPA. Provider acknowledges and agrees to certify that it understands the restrictions of CCPA and will comply with them when CCPA becomes effective, and that Client’s regulated under CCPA will execute an applicable Data Processing Addendum (12defined below) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITYrequired by CCPA for compliance. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDERClient agrees not to provide any data to Provider subject to the Xxxxx-Xxxxx-Xxxxxx Act (“GLBA”) or Health Insurance Portability and Accountability Act (“HIPAA”). Client shall indemnify and hold Provider harmless for any claims related to Client Data that is regulated under GLBA and/or HIPAA, unless the Parties enter an applicable Data Processing Addendum (defined below). Client agrees not to provide any data to Provider from any data subject of the European Union or the United Kingdom that is regulated under the General Data Protection Regulation (“GDPR”) or similar data protection regulation. Client shall indemnify and hold Provider harmless for any claims related to Client Data that is from a data subject from the European Union or the United Kingdom, or from claims from any data protection regulatory authority enforcing GDPR compliance or similar data protection regulation. If the United Kingdom departs from the European Union and decides to withdraw from or supersede GDPR with a similar data protection regulation, then the subsequent United Kingdom data protection regulation will be the governing regulation for United Kingdom’s data subjects. For Clients who require the processing of GLBA, HIPAA, GDPR, or United Kingdom data processing or similar data privacy and/or data protection regulation, Client must enter into an applicable agreement with Provider in the form of a data processing agreement (the “Data Processing Addendum”).

Limitation of Liability EXCEPT. FOR (a) A BREACH BY CUSTOMER OF SECTION 2DEATH, (b) INFRINGEMENT BODILY INJURY OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTSFRAUD, INCLUDING TRADE SECRETS, (c) OR TO THE EXTENT PERMITTED THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW LAW, IN NO EVENT SHALL KKMT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (THE “EXCLUDED MATTERS”WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY OTHER PERSON FOR ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL OR INCIDENTAL LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST OF PROFITS; and (v) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, DAMAGES INCLUDING, BUT NOT LIMITED TO, BREACH LOSS OF CONTRACTBUSINESS, TORT (INCLUDING NEGLIGENCE)REVENUES, PROFITS OR GOODWILL, OR VIOLATION (D) DIRECT DAMAGES IN EXCESS, IN THE AGGREGATE, OF STATUTEFEE PAID TO KKMT WITHIN ONE MONTH PRECEDING THE DATE CAUSE OF ACTION AROSE, WHETHER OR NOT SUCH PARTY EVEN IF KKMT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND/OR AND SHALL APPLY NOTWITHSTANDING THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM FAILURE OF THE AMOUNTS PAYABLE FOR THE APPLICABLE SERVICE(S) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITYANY REMEDY PROVIDED HEREIN. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.General Provisions

Limitation of Liability EXCEPT. FOR (a) A BREACH BY CUSTOMER OF SECTION 2, 2 (b) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (c) DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, AND (d) TO THE EXTENT PERMITTED BY APPLICABLE LAW (THE “EXCLUDED MATTERS”), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST OF PROFITS; and (v) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. EXCEPT FOR THE EXCLUDED MATTERS, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAYABLE PAID FOR THE APPLICABLE SERVICE(SPRODUCT(S) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, OR IN THE CASE OF MAINTENANCE, CONSULTING SERVICES OR EDUCATION SERVICES, THE AMOUNTS PAID FOR THE APPLICABLE SERVICE. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.

Limitation of Liability EXCEPT. FOR (a) A BREACH BY CUSTOMER OF SECTION 2, (b) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (c) TO THE EXTENT PERMITTED BY APPLICABLE LAW (SPECIFICALLY ADDRESSED HEREIN, TENANT SHALL NOT HAVE THE “EXCLUDED MATTERS”), NEITHER PARTY SHALL BE LIABLE RIGHT TO THE OTHER PARTY AN ABATEMENT OF RENT OR TO TERMINATE THIS LEASE AS A RESULT OF LANDLORD'S DEFAULT AS TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL COVENANT OR INCIDENTAL LOSSES, AGREEMENT CONTAINED IN THIS LEASE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT AS A RESULT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST OF PROFITS; and (v) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE THE BREACH OF ANY PROMISE OR ALL INDUCEMENT IN CONNECTION HEREWITH, WHETHER IN THIS LEASE OR ELSEWHERE AND TENANT HEREBY WAIVES SUCH REMEDIES OF THE SERVICES, ABATEMENT OF RENT AND TERMINATION. TENANT HEREBY AGREES THAT TENANT'S REMEDIES FOR DEFAULT HEREUNDER OR IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, WAY ARISING IN CONNECTION WITH THIS LEASE INCLUDING ANY BREACH OF CONTRACTANY PROMISE OR INDUCEMENT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), EXPRESSED OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOFIMPLIED, SHALL BE LIMITED TO SUIT FOR DIRECT AND PROXIMATE DAMAGES PROVIDED THAT TENANT HAS GIVEN THE SUM NOTICES AS HEREINAFTER REQUIRED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD TO TENANT FOR ANY DEFAULT BY LANDLORD UNDER THIS LEASE SHALL BE LIMITED TO THE AMOUNTS PAYABLE INTEREST OF LANDLORD IN THE BUILDING AND THE PROPERTY AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING AND THE PROPERTY FOR THE APPLICABLE SERVICE(S) DURING RECOVERY OF ANY JUDGMENT AGAINST THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE LANDLORD, IT BEING INTENDED THAT LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE LIABILITY. FILING OF ANY SUIT FOR DIRECT AND PROXIMATE DAMAGES, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS PROPERTY, BUILDING OR PREMISES ("LANDLORD MORTGAGEES") NOTICE AND REASONABLE TIME TO PAY CURE ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDERALLEGED DEFAULT BY LANDLORD.

Limitation of Liability EXCEPT. FOR (a) A BREACH DS’S LIABILITY UNDER SECTION 5.2 HEREOF, DS’S MAXIMUM LIABILITY FOR DAMAGES SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER OF SECTION 2, FOR THE LICENSED PROGRAM OR THE ONLINE SERVICES WHICH CAUSED THE DAMAGES IN THE PRECEDING TWELVE (b12) INFRINGEMENT OR MISAPPROPRIATION MONTH-PERIOD PRIOR TO THE OCCURRENCE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (c) CAUSE OF ACTION GIVING RISE TO THE EXTENT PERMITTED BY APPLICABLE LAW (THE “EXCLUDED MATTERS”), NEITHER PARTY CLAIM. DS SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON HAVE NO LIABILITY FOR ANY INDIRECT, SPECIALINCIDENTAL, CONSEQUENTIAL OR INCIDENTAL LOSSES, OR EXEMPLARY PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TOWITHOUT LIMITATION CLAIMS FOR LOST PROFITS, THOSE ARISING OUT OF OR RELATING TO: (i) BUSINESS INTERRUPTION AND LOSS OF DATA; (ii) LOSS , THAT IN ANY WAY RELATE TO THIS AGREEMENT, ANY DS OFFERING, DOCUMENTATION OR SERVICES, WHETHER OR NOT DS HAS BEEN ADVISED OF INCOME; (iii) LOSS THE POSSIBILITY OF OPPORTUNITY; (iv) LOST SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF PROFITS; and (v) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE THE ESSENTIAL PURPOSE OF ANY OR ALL REMEDY. THE LIMITATIONS STATED IN THIS SECTION SHALL APPLY REGARDLESS OF THE SERVICESFORM OF ACTION, IN EACH CASE, HOWEVER CAUSED AND WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON ANY THEORY OF LIABILITY, CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACTWARRANTY), TORT (INCLUDING INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESANY OTHER LEGAL OR EQUITABLE THEORY. EXCEPT FOR THE EXCLUDED MATTERSCustomer waives any and all claims related to this Agreement or any DS Offerings or Documentation or services provided hereunder, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOFfor any direct, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAYABLE FOR THE APPLICABLE SERVICE(Sindirect, incidental or consequential damages, on any basis, against any DS licensors or any DS Group Company other than DS. Any legal action against DS must be filed with the appropriate judicial jurisdiction within two (2) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITYyears after the applicable cause of action has arisen. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER8. Distributors For any DS Offering which Customer obtains through a Distributor, Customer agrees that Distributor is responsible for pricing, payment collection and delivery of any orders it accepts. DS remains independent from the Distributor and is not responsible for the Distributor’s actions or omissions. 9.