2021-476-E-AMS-Dude Solutions-All Facility Assessment Condition Study and Software

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A-0000000464 CONFIDENTIAL 14 Rev . 03/31/2020 Subscriber (x) promptly gives DSI written notice of the Claim; (y) gives DSI sole control of the defense and settlement of the Claim; and (z) provides to DSI all reasonable assistance, at DSI’s expense. If DSI receives information about an infringement or misappropriation claim related to the Service, DSI may in its sole discretion and at no cost to Subscriber: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Subscriber’s continued use of the Service, or (iii) terminate this Agreement (including Subscriber’s Service subscriptions and Account) upon prior written notice and refund to Subscriber any prepaid Subscription Fee covering the remainder of the term of the terminated Service subscriptions. Notwithstanding the foregoing, DSI shall have no liability or obligation with respect to any Claim that is based upon or arises out of (A) use of the Service in combination with any software or hardware not expressly authorized by DSI, (B) any modifications or configurations made to the Service by Subscriber without the prior written consent of DSI, and/or (C) any action taken by Subscriber relating to use of the Service that is not permitted under the terms of this Agreement. This Section 7.3(a) states Subscriber’s exclusive remedy against DSI for any Claim of infringement of misappropriation of a Third Party’s Intellectual Property Rights related to or arising from Subscriber’s use of the Service. (b) RESERVED. 7.4 Limitation of Liability. (a) SUBJECT TO SECTION 7.4 (b) , IN NO EVENT SHALL DSI, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO SUBSCRIBER IN EXCESS OF THE AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO DSI PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES SHALL DSI HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF DSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5. (B) NOTHING IN THIS AGREEMENT SHALL EXCLUDE, LIMIT OR RESTRICT EITHER PARTY'S PROFESSIONAL SERVICES LIABILITY FOR (I) DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; OR (II) FRAUD OR FRAUDULENT MISREPRESENTATION; (III) DSI'S LIABILITY UNDER INDEMNIFICATION; OR (IV) ANY OTHER CAUSE OF ACTION WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. Section 8.0 Confidentiality 8.1 Protection of Confidential Information. The Receiving Party agrees that it shall: (i) use the Confidential Information solely for a purpose permitted by this Agreement, (ii) use the same degree of care as Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of Confidential Information; and(iii) restrict access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement. Receiving Party shall not use, reproduce, or directly or indirectly allow access to the Confidential Information except as herein provided or export Confidential Information to any country prohibited from obtaining such information under any applicable laws or regulations. 8.2 Compelled Disclosure. If Receiving Party is required to disclose any Confidential Information to comply with law, to the extent legally permitted, Receiving Party shall: (a) give the Disclosing Party reasonable prior written notice to permit Disclosing Party to challenge or limit any such legally required disclosure; (b) disclose only that portion of the Confidential Information as legally required to disclose; and (c) reasonably cooperate with Disclosing Party, at Disclosing Party’s request and expense, to prevent or limit such disclosure. DocuSign Envelope ID: 4D9EE5C9-1C7C-4BC0-8831-A9615B43A0B9