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10. LIMITATION OF LIABILITY. Except for breaches of
<br />Section 6, neither Party shall have any liability to the other
<br />Party for any loss of use, interruption of business, lost profits,
<br />costs of substitute services, or for any other indirect, special,
<br />incidental, punitive, or consequential damages, however
<br />caused, under any theory of liability, and whether or not the
<br />Party has been advised of the possibility of such damage.
<br />Notwithstanding anything in this Agreement to the contrary, in
<br />no event shall Everbridge's aggregate liability, regardless of
<br />whether any action or claim is based on warranty, contract,
<br />tort, indemnification or otherwise, exceed amounts actually
<br />paid by Customer to Everbridge hereunder during the 12
<br />month period prior to the event giving rise to such liability.
<br />Customer understands and agrees that these liability limits
<br />reflect the allocation of risk between the Parties and are
<br />essential elements of the basis of the bargain, the absence of
<br />which would require substantially different economic terms.
<br />This clause shall not impair the U.S. Government's right to
<br />recover for fraud or crimes arising out of or related to this
<br />Agreement under any federal fraud statute. Furthermore, this
<br />clause shall not impair nor prejudice the U.S. Government's
<br />right to express remedies provided in the schedule contract
<br />(i.e. Price Reductions, Patent Indemnification, Liability for
<br />Injury or Damage, Price Adjustment, Failure to Provide
<br />Accurate Information).
<br />11. MISCELLANEOUS.
<br />11.1 Non - Solicitation. As additional protection for
<br />Everbridge's proprietary information, for so long as this
<br />Agreement remains in effect, and for one year thereafter,
<br />Customer agrees that it shall not, directly or indirectly, solicit,
<br />hire or attempt to solicit any employees of Everbridge;
<br />provided, that a general solicitation to the public for
<br />employment is not prohibited under this section.
<br />11.2 Force Majeure; Limitations. Everbridge shall not
<br />be responsible for performance under this Agreement to the
<br />extent precluded by circumstances beyond Everbridge's
<br />reasonable control, including without limitation acts of God,
<br />acts of government, flood, fire, earthquakes, civil unrest, acts
<br />of terror, labor problems, computer, telecommunications,
<br />Internet service provider or hosting facility failures, or delays
<br />involving hardware, software or power systems, and network
<br />intrusions or denial of service attacks. The Service delivers
<br />information for supported Contact paths to public and private
<br />networks and carriers, but cannot guarantee delivery of the
<br />information to the recipients. Final delivery of information to
<br />recipients is dependent on and is the responsibility of the
<br />designated public and private networks or carriers. Customer
<br />acknowledges and agrees that territories outside the U.S. and
<br />Canada may have territorial restrictions resulting from
<br />applicable law, telecommunications or internet infrastructure
<br />limitations, telecommunications or internet service provider
<br />policies, or communication device customizations that may
<br />inhibit or prevent the delivery of certain SMS, text or other
<br />notifications, or restrict the ability to place or receive certain
<br />calls such as outbound toll free calls. Everbridge shall have no
<br />liability to the extent such restrictions impede the Service.
<br />11.3 Waiver; Severability. The failure of either Party
<br />hereto to enforce at any time any of the provisions or terms of
<br />this Agreement shall in no way be considered to be a waiver of
<br />such provisions. If any provision of this Agreement is found by
<br />any court or other authority of competent jurisdiction to be
<br />invalid, illegal or unenforceable, that provision shall, to the
<br />extent required, be deemed deleted and the remaining
<br />provisions shall continue in full force and effect.
<br />11.4 Assignment. Neither this Agreement nor any
<br />rights granted hereunder may be sold, leased, assigned
<br />(including an assignment by operation of law), or otherwise
<br />transferred, in whole or in part, by Customer, and any such
<br />attempted assignment shall be void and of no effect without the
<br />advance written consent of Everbridge, which shall not be
<br />unreasonably withheld.
<br />11.5 Governing Law; Attorney's Fees. This
<br />Agreement shall be governed and construed in accordance
<br />with the federal laws of the United States of America.
<br />11.6 Notices. Either party may give notice at any time
<br />by any of the following: letter delivered by (i) nationally
<br />recognized overnight delivery service; (ii) first class postage
<br />prepaid mail; or (iii) certified or registered mail, (certified and
<br />first class mail deemed given following 2 business days after
<br />mailing) to the other party at the address set forth on the
<br />Quote. Either Party may change its address by giving notice
<br />as provided herein.
<br />11.7 No Third -Party Beneficiaries. There are no
<br />third -party beneficiaries to this Agreement.
<br />11.8 Entire Agreement. [Intentionally Deleted]
<br />11.9 Marketing. Everbridge shall obtain Customer's
<br />express written consent in order to reference Customer's name
<br />and logo as an Everbridge customer in Everbridge
<br />publications, its website, and other marketing materials.
<br />11.10 Survival. Sections 2, 3.2, 5.2, 6, 7, 9 -11 and the
<br />applicable provisions of Exhibit A shall survive the expiration or
<br />earlier termination of this Agreement.
<br />11.11 Counterparts. This Agreement may be executed
<br />in one or more counterparts, all of which together shall
<br />constitute one original document. A facsimile transmission or
<br />copy of the original shall be as effective and enforceable as the
<br />original.
<br />11.12 Export Compliant. Neither Party shall export,
<br />directly or indirectly, any technical data acquired from the other
<br />pursuant to this Agreement or any product utilizing any such
<br />data to any country for which the U.S. Government or any
<br />agency thereof at the time of export requires an export license
<br />or other governmental approval without first obtaining such
<br />license or approval.
<br />11.13 Equal Employment Opportunity. Everbridge,
<br />Inc. is a government contractor and is subject to the
<br />requirements of Executive Order 11246, the Rehabilitation
<br />Assistance Act and VEVRAA. Pursuant to these requirements,
<br />the Equal Opportunity Clauses found at 41 Code of Federal
<br />Regulations sections 60- 1.4(a) (1 -7), sections 60- 250.4(a -m),
<br />sections 60 -300.5 (1 -11) and sections 60 -741.5 (a) (1 -6) are
<br />incorporated herein by reference as though set forth at length,
<br />and made an express part of this Agreement.
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