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6.F. - Page 127 of 180
<br />12. LIMITATION OF LIABILITY
<br />NEITHER PARTY, NOR ORACLE, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL
<br />DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA, OR DATA USE. CHERRYROAD'S AND ORACLE'S AGGREGATE LIABILITY
<br />FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR
<br />OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO ORACLE FOR THE SERVICES UNDER THE ORDER
<br />GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
<br />LIABILITY LESS ANY REFUNDS OR CREDITS RECEIVED UNDER SUCH ORDER.
<br />13. INDEMNIFICATION
<br />13.1 Subject to the terms of this Section 13 (1 ndemnificati on) and to the extent not prohibited by law, if third party makes a
<br />claim against either You or Oracle ("Recipient" which may refer to You or Oracle depending upon which party received the
<br />Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively,
<br />"Material") furnished by either You or Ora cle("Provider" which may refer to You or Oracle dependi ng on which party provided
<br />the Materi a I) and used by the Recipient infringes the third party's i ntel IectuaI property rights, the Provider, at the Provider's sole
<br />cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs
<br />and expenses awarded by the court to the third party cl a iminginfringement or the settlement agreed to by the Provider, if the
<br />Recipient does the following:
<br />a. notifies the Provider promptly in writing, not Iaterthan 30 days after the Recipient receives notice of the cIaim(orsooner if
<br />required by a ppl i cable I a w);
<br />b. gi ves the P rovi der s ol e control of the defens e a nd a ny settl ement negoti ati ons; a nd
<br />C. gives the Provi der the i nformati on, a uthority a nd assi sta nce the Provi der needs to defend a ga i nst or s ettl e the claim.
<br />13.2 If the Provider believes or it is determined that any of the Material may have violated a third party's intellectual property
<br />rights, the Provider may choose to either modify the Material to be non -infringing (while substantially preserving its utility or
<br />f uncti ona I i ty) or obta i n a licensetoaIlow for continueduse,orifthesealternatives a re not commercialIyreasonable,theProvi der
<br />may end the right to access or license for, and requi re return of, the applicable Material and refund any unused, prepaid fees
<br />the Recipient may have paid to the other party for such Material. If such return materially affects Oracle's ability to meet its
<br />obi igations underthe rel evantorder, then Oracle may, at its opti on a nd upon 30 days pri or wri tten noti ce, termi nate the order.
<br />If such Material is third party technology and the terms of the third party license do not al low0racleto terminate the license,
<br />then Oracle may, upon 30 days prior written notice, end the Services associated with such Material and refund to CherryRoad
<br />Technologies, and CherryRoad Technologies Inc. will in turn refund to You anyunused, prepaid fees for such Services.
<br />13.3 The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use
<br />i denti fi ed i n the Provi der's us er or progra m documentation or Servi ce Specifi cati ons, (b) us es a vers i on of the Materi a I wh i ch has
<br />been superseded, if the infri ngement claim could have been avoided by usingan unaltered current version of the Material which
<br />was made avail able to the Recipient, or (c) continues to use the applicableMateri al after the end of the license to use that
<br />Materi a 1. The P rovi der wi I I not i ndemn i fy the Reci pi ent to the extent that a n i nfri ngement cl a i m i s ba s ed upon a ny i nformati on,
<br />design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. Neither Oracle
<br />nor CherryRoad will indemnifyYou for any portion of an infringement claimthat is based upon the combination of any Material
<br />with any products or Services not provided by Oracle. Oracle and CherryRoad will not indemnify You to the extent that an
<br />infringement claim is based on Third Party Content or any Material from a third party portal or other external source that is
<br />accessibleor made avail able to You withinor by the Services (e.g., a social media post from a third party blogor forum, a third
<br />party Web page access ed via a hyperl i nk, ma rketi ng data fromthird party data provi ders, etc.). Ora c I e a n d CherryRoa d will not
<br />indemnify You for infringement caused by Your actions aga inst a ny thi rd party if the Services as delivered to You and used in
<br />accordancewith the terms of this Agreement would not otherwise infringeany third party intellectual property rights. Oracle
<br />and CherryRoad will not indemnify You for any intellectual property infringement claims) known to You at the time Services
<br />rights areobtained.
<br />13.4 Th i s Secti on 13 provi des the pa rti es'excl us ive remedy for a ny i nfri ngement cl a i ms or da ma ges.
<br />EXHIBIT D CHERRYROAD/ORACLE CLOUD SERVICES AGREEMENT
<br />ATTY/AGR/2019.118/CHERRYROAD ERP IMPLEMENTATION SERVICES
<br />REV: 05-13-19 PR Page 119 of 172
<br />D-7
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