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EXHIBIT A
<br /> successors,and assigns against any Liabilities that are payable to any third party or incurred by SEW arising from any third-party claim,suit,or
<br /> proceeding arising out of(a)SEW's authorized use of the Customer Data or(b)any use of the Software by Customer and/or its Subscribers in violation
<br /> of this Agreement.
<br /> 9.3. Indemnification Procedure.If an indemnified party becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2,
<br /> as applicable,involving any claim,action,suit,investigation,arbitration or other proceeding against the indemnified party by any third party(each an
<br /> "Action"),the indemnified party will give the other party prompt written notice of such Action. The indemnified party will cooperate,at the expense of
<br /> the indemnifying party,with the indemnifying party and its counsel in the defense and the indemnified party will have the right to participate fully,at its
<br /> own expense,in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written
<br /> consent of both Parties hereunder,such consent not to be unreasonably withheld or delayed.
<br /> 10. LIMITATION OF LIABILITY.
<br /> 10.1. Liability Cao.UNDER NO CIRCUMSTANCES WILL SEWS LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT
<br /> (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS)EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO SEW UNDER THIS
<br /> AGREEMENT DURING THE TWELVE(12)MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
<br /> 10.2. Exclusion of Consequential Damages.IN NO EVENT WILL SEW BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL,INDIRECT,SPECIAL,
<br /> INCIDENTAL,OR PUNITIVE DAMAGES OF ANY KIND,INCLUDING LOST PROFITS OR LOST REVENUE,ARISING OUT OF OR RELATED TO
<br /> THIS AGREEMENT.
<br /> 10.3. Clarifications&Disclaimers.THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY REGARDLESS OF THE FORM OF ACTION,WHETHER IN
<br /> CONTRACT,TORT,STRICT PRODUCT LIABILITY,OR OTHERWISE;EVEN IF SEW IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE
<br /> DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE;AND EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR
<br /> ESSENTIAL PURPOSE.If applicable law limits the application of the provisions of this Section 10,SEWs liability will be limited to the maximum extent
<br /> permissible by law.For the avoidance of doubt,SEW's liability limits apply to SEW's affiliates,SEWS,agents,sponsors,directors,officers,employees,
<br /> consultants,and other representatives.
<br /> 10.4. Exceptions to Limitation of Liability.The foregoing limitations do not apply to any liability arising from SEWS indemnification obligations under Section
<br /> 9.1 above.
<br /> 11 TERM&TERMINATION.
<br /> 11.1. Term. The Initial Term of this Agreement shall begin on the Effective Date and continue for the Term as stated in the applicable Order Form.Thereafter,
<br /> unless this Agreement is eadier terminated in accordance with its terms,this Agreement will automatically renew for additional one(1)year terms
<br /> (each,a"Renewal Term",and together with the Initial Term,the"Term"),unless either party delivers to the other party written notice of non-renewal
<br /> at least ninety(90)days'prior to the end of the then-current term.
<br /> 11.2. Termination.Either party may terminate this Agreement:(a)upon written notice to the other party if such other party materially breaches this Agreement
<br /> and fails to cure such breach within thirty(30)days of written notice thereof;or(b)upon written notice to the other party if such other party becomes
<br /> the subject of a petition in bankruptcy or any other proceeding related to insolvency,receivership,liquidation or assignment for the benefit of creditors
<br /> (which,if involuntary,is not dismissed within sixty(60)days of its institution).
<br /> 11.3. Effects of Termination.Upon expiration or termination of this Agreement,Customer will immediately cease all use of the Software and delete,destroy,
<br /> or return all copies of the Documentation in its possession or control.SEW shall similarly delete,destroy,or return all relevant copies of Customer
<br /> data which may be entitled to preservation based on stale or federal data retention requirements.The following provisions will survive termination or
<br /> expiration of this Agreement:(a)any obligation of Customer to pay fees incurred before termination(in addition to any fees owed under Section 11.3
<br /> above,if applicable)and(b)Sections 1,4,5,6,8.3,9,10,11 and 12.
<br /> 12. MISCELLANEOUS.
<br /> 12.1. Independent Contractors.The Parties are independent contractors and will so represent themselves in all regards.Neither party is the agent of the
<br /> other,and neither may make commitments on the other's behalf.
<br /> 12.2. Force Majeure.No delay,failure,or default,other than a failure to pay fees,will constitute a breach of this Agreement to the extent caused by causes
<br /> beyond the performing party's reasonable control or acts of war,terrorism,earthquakes,other acts of God or of nature,strikes or labor disputes,
<br /> embargoes.
<br /> 12.3. Assignment&Successors.Customer may not assign this Agreement or any of its rights or obligations hereunder without SEWs written consent.SEW
<br /> may freely assign this Agreement. Except to the extent forbidden herein,this Agreement will be binding upon and inure to the benefit of the Parties'
<br /> respective successors and assigns.
<br /> 12.4. Severability. To the extent permitted by law, the Parties waive any provision of law that would render any clause of this Agreement invalid or
<br /> unenforceable.In the event that a provision herein is held to be invalid or unenforceable,such provision will be interpreted to fulfill its intended purpose
<br /> to the maximum extent permitted by law,and the remaining provisions of this Agreement will continue in full force and effect.
<br /> 12.5. No Waiver.Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation
<br /> other than by an authorized representative in an explicit written waiver.No waiver of a breach hereof will constitute a waiver of any other breach of
<br /> this Agreement.
<br /> 12.6. Choice of Law&Jurisdiction:This Agreement will be governed by the laws of the State of California,without reference to any conflicts of law principles.
<br /> The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of Orange County,California.
<br /> 12.7. Conflicts.Should this Agreement conflict with any other agreements,this Agreement will govern.
<br /> 12.8. Construction.The Parties agree that the terms of this Agreement result from negotiations between them.This Agreement will not be construed in favor
<br /> of or against either party by reason of authorship.
<br /> 12.9. Entire Agreement.This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings,negotiations,
<br /> and discussions with respect to its subject matter.Neither party has relied upon any such prior or contemporaneous communications.
<br /> 12.10. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such
<br /> counterparts will constitute a single instrument.
<br /> 12.11. Modification.This Agreement may be modified from time to time by SEW,with Customer to be provided notice of no less than thirty(30)days prior to
<br /> such Terms and Conditions taking effect.
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