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8. DISCLAIMER; LIMITATION OF LIABILITY infringing SaaS Products. Except as specified above,
<br /> 8.1 Disclaimer. TO THE MAXIMUM EXTENT ALLOWED BY Proactis will not be liable for any costs or expenses incurred
<br /> LAW AND EXCEPT AS UNAMBIGUOUSLY AND without its prior written authorization. The foregoing
<br /> EXPRESSLY SET FORTH IN ANY EXHIBIT, SCHEDULE obligations do not apply with respect to SaaS Products or
<br /> OR ATTACHMENT, THE SAAS PRODUCTS ARE Software or portions or components thereof(i)not supplied by
<br /> PROVIDED "AS IS" AND PROACTIS SPECIFICALLY Proactis, (ii)made in whole or in part in accordance to
<br /> DISCLAIMS ALL IMPLIED WARRANTIES OF Customer specifications, (iii)that are modified after delivery
<br /> MERCHANTABILITY AND FITNESS FOR A PARTICULAR by Proactis, (iv)combined with other products, processes or
<br /> PURPOSE WITH RESPECT TO THE SAAS PRODUCTS materials where the alleged infringement relates to such
<br /> CONNECTED WITH, RELATED TO OR ARISING OUT OF combination, (v)where Customer continues allegedly
<br /> THIS AGREEMENT. PROACTIS EXPRESSLY DISCLAIMS infringing activity after being notified thereof or after being
<br /> ANY REPRESENTATION OR WARRANTY THAT ACCESS informed of modifications that would have avoided the alleged
<br /> OR USE OF THE SAAS PRODUCTS WILL BE ERROR- infringement, or (vi)where Customer's use of such SaaS
<br /> FREE, SECURE OR UNINTERRUPTED, OR THAT Products or Software is not strictly in accordance with this
<br /> INFORMATION OR CONTENT WILL BE ACCURATE OR Agreement.
<br /> TIMELY. 9.2 By Customer. Customer shall indemnify and hold harmless
<br /> 8.2 Limitation of Liability. TO THE MAXIMUM EXTENT Proactis and its Affiliates, and their directors, shareholders,
<br /> ALLOWED BY LAW, IN NO EVENT WILL EITHER PARTY members,agents,and employees from and against any fine,
<br /> HERETO BE LIABLE FOR ANY LOSS OF PROFITS, LOSS penalty, costs, losses, liabilities and expenses (including
<br /> OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR reasonable attorneys' fees), to the extent arising out of or
<br /> COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, relating to the Customer's Misuse of the Services which
<br /> TECHNOLOGIES OR SERVICES, COST OF COVER OR results in criminal or civil liability to Proactis from a third party
<br /> PUNITIVE OR EXEMPLARY, OR INDIRECT, SPECIAL, claim (where "Misuse of the Services" is defined as an
<br /> INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY action/omission of negligence or willful misconduct or breach
<br /> KIND IN CONNECTION WITH OR ARISING OUT OF THE of this Agreement by Customer which results in Proactis'
<br /> FURNISHING, PERFORMANCE OR USE OF THE criminal or civil liability to a third party). Section 9.1 is
<br /> SERVICES OR SaaS PRODUCTS PERFORMED explicitly excepted from this provision.
<br /> HEREUNDER, WHETHER ALLEGED AS A BREACH OF 9.3 Exclusive Remedy. THE FOREGOING PROVISIONS OF
<br /> CONTRACT OR TORTIOUS CONDUCT, INCLUDING THIS SECTION 9 STATE THE ENTIRE LIABILITY AND
<br /> NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN OBLIGATIONS OF PROACTIS AND ANY OF ITS
<br /> ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN LICENSORS, AND THE EXCLUSIVE REMEDY OF
<br /> ADDITION, PROACTIS WILL NOT BE LIABLE FOR ANY CUSTOMER, WITH RESPECT TO ANY ACTUAL OR
<br /> DAMAGES CAUSED BY DELAY IN DELIVERY OR ALLEGED INFRINGEMENT OF ANY PATENT,
<br /> FURNISHING THE SERVICES OR SaaS PRODUCTS. THE COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER
<br /> LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT INTELLECTUAL PROPERTY RIGHT BY THE SAAS
<br /> OR THE TERMINATION OF THIS AGREEMENT WHETHER PRODUCTS,ANY SOFTWARE,OR ANY PART THEREOF.
<br /> FOR DIRECT, INDIRECT, SPECIAL, PUNITIVE, 10. INSURANCE. Proactis shall, at its own cost and expense,
<br /> EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL procure and maintain in full force and effect during the term of
<br /> DAMAGES OF ANY KIND, INCLUDING, WITHOUT this Agreement, policies of insurance, of the types and in the
<br /> LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, minimum amounts stated herein, with responsible insurance
<br /> EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY carriers duly qualified in those states (locations) where the
<br /> PAID BY CUSTOMER TO PROACTIS PURSUANT TO THIS SaaS Products are to be performed, covering the operations
<br /> AGREEMENT DURING THE TWELVE(12)MONTHS PRIOR of Proactis, pursuant to this Agreement.
<br /> TO THE OCCURRENCE OF THE BREACH OR DAMAGE.
<br /> 9. INDEMNIFICATION
<br /> 9.1 By Proactis. Proactis agrees to defend or, at its option, to TYPES OF INSURANCE LIMITS OF LIABILITY
<br /> settle,any claim brought against Customer for infringement of (Minimum Amounts)
<br /> any United States copyright,trade secret or trademark by the Comprehensive or Commercial $1,000,000 per
<br /> SaaS Products as delivered, and to indemnify Customer General Liability and Third occurrence,$2,000,000
<br /> against all damages and costs assessed against Customer Party Property Damage aggregate
<br /> under any such claim or action. Customer agrees that Excess Liability insurance $5,000,000 per
<br /> Proactis shall be released from the foregoing obligation occurrence,$5,000,000
<br /> unless Customer has taken all reasonable steps to mitigate aggregate
<br /> any potential expenses and provides Proactis with: (i)prompt Workers'Compensation $1,000,000 per accident
<br /> written notice of any such claim or action, or possibility Employer's Liability $1,000,000 per accident
<br /> thereof; (ii) sole control and authority over the defense or Professional Errors and $1,000,000 per
<br /> settlement of such claim or action; and (iii) proper and full Omissions Insurance occurrence,$1,000,000
<br /> information and assistance to settle and/or defend any such aggregate
<br /> claim or action. Customer shall have the right to employ Cyber Liability Insurance $2,000,000 per
<br /> separate counsel and participate in the defense at its own occurrence
<br /> expense; provided that Proactis shall remain in control of the Upon Customer's request, Proactis shall provide Customer
<br /> defense. In addition, Proactis may, at its sole option and with certificates of insurance evidencing all of the above
<br /> expense, either: (a)procure for Customer the right to use the coverage, including all special requirements specifically noted
<br /> infringing SaaS Products; (b) replace the infringing SaaS above, and shall provide Customer with certificates of
<br /> Products with non-infringing, functionally equivalent services; insurance evidencing renewal or substitution of such
<br /> (c) modify the infringing SaaS Products so that they are not insurance thirty (30) days prior to the effective date of such
<br /> infringing; or if(a), (b), and (c)are not commercially feasible, renewal or substitution.
<br /> then (d) will cease to provide the infringing SaaS Products, 11. GENERAL
<br /> pay as liquidated damages an amount equal to any Fees
<br /> covering any period of time during which such infringing SaaS 11.1 Notices. Any notice required or permitted under the terms of
<br /> Products were to be provided and terminate this Agreement this Agreement or required by law must be in writing and must
<br /> as it relates to such infringing SaaS Products. Upon exercise be: (i) delivered in person; (ii) sent by first class registered
<br /> of option (d)in the previous sentence, Proactis shall have no mail, or air mail, as appropriate; or (iii) sent by overnight air
<br /> further obligations or liability to Customer with respect to the courier. Notice to Customer shall be sent to the address set
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<br /> Master Services Agreement
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