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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 RISETO 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 (Indemnification) and to the extent not prohibited bylaw, 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 cl e ("Provider" which may refer to You or Oracledependi ng on which party provided
<br />the Material) and used by the Recipient infringes the third party's intellectual property rights, the Provider, at the Provider's sole
<br />costand 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 claiming infringement or the settlement agreed to by the Provider, ifthe
<br />Recipient does the following:
<br />a. notifies the Provider promptly in writing, not laterthan 30 days after the Recipient receives notice of the claim (or sooner if
<br />required by applicablelaw);
<br />b. givesthe Provider solecontrol of the defense anclany settlement negotiations; and
<br />C. givesthe Providerthe information, authority and assistance the Provider needs to defend againstorsettlethe 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 />functionality) or obtain a licenseto allowfor continued use, or if thesealternatives are not commercially reasonable, the Provide'
<br />may end the rightto access or licensefor, and requirereturn 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 />obligations underthe relevant order, then Oraclemay, at its option and upon 30 days prior written notice, terminate the order.
<br />If such Material is third party technology and the terms of the third party licensedo not allowOracleto 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 inturn refund to You anyunused, prepaidfees forsuch 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 />identified in the Provider's user or program documentation or ServiceSpecificati ons, (b) uses a version of the Material which has
<br />been superseded, ifthe infringement claim could havebeen avoided by usingan unaltered currentversion of the Material which
<br />was made availableto the Recipient, or (c) continues to use the applicable Material after the end of the licenseto use that
<br />Material. The Providerwi II notindemnify the Recipient to the extent that an infringement claim is based upon any information,
<br />design,specification,instruction,software,service,data, hardware or material not furnished by the Provider. Neither Oracle
<br />nor CherryRoad will indemnify You for any portion of an infringement cl aimthatis 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 thatis
<br />accessibleor made availableto You within or by the Services (e.g., a social media postfrom athird party blogor forum, a third
<br />party Web page accessed via a hyperlink, marketing data from third party data providers, etc.). Oracle and CherryRoad will not
<br />indemnify You for infringement caused by Your actions against anythird 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 claim(s) known to You at the time Services
<br />rights areobtained.
<br />13.4 This Section 13 provides the parties' exclusive remedy for any infringement claims or damages.
<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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