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MSA v2024.08.28 US.EN US Public Sector Page 6 of 19
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<br />indemnify and hold harmless the Customer Indemnified Parties against any liabilities, damages, costs, or expenses
<br />(including, without limitation, reasonable attorneys’ fees) actually awarded by a court of applicable jurisdiction to the
<br />extent resulting from such third party Claim, or as a result of UKG’s settlement of such third party Claim.
<br />8.2 Mitigation.In the event that a final injunction is obtained against Customer’s use of the Subscription Services by reason
<br />of infringement or misappropriation, or if in UKG’s opinion, the use of the Subscription Services is likely to become the
<br />subject of a successful Claim of infringement or misappropriation, UKG (at its option and expense) will use commercially
<br />reasonable efforts to either (a) procure for Customer the right to continue using the Subscription Services as provided in
<br />the Agreement; or (b) replace or modify the Subscription Services so that they become non-infringing but remain
<br />substantively similar to the affected Subscription Services. Should neither (a) nor (b) be commercially reasonable, either
<br />Party may terminate the applicable Subscription Services and the rights granted hereunder upon written notice, at which
<br />time UKG will provide a refund to Customer of any fees paid by Customer for the infringing elements covering the period
<br />of their unavailability.
<br />8.3 Exceptions.UKG will have no liability to indemnify or defend Customer to the extent the alleged infringement or
<br />misappropriation of the Subscription Services is based on (a) use other than as expressly permitted by this Agreement
<br />or by UKG in writing; or (b) use in conjunction with any equipment, service, or software not provided by UKG, where the
<br />Subscription Services would not otherwise infringe, misappropriate, or become the subject of the third party Claim.
<br />8.4 Qualifications.Customer will provide written notice to UKG promptly after receiving notice of a third party Claim. If
<br />defense of such third party Claim is materially prejudiced by a delay in providing notice, UKG will be relieved from
<br />providing such indemnity to the extent of the delay’s impact on the defense. UKG will have sole control of the defense
<br />of any indemnified third party Claim and all negotiations for its settlement or compromise, provided that UKG will not
<br />enter into any settlement which imposes any obligations on Customer without the prior written consent of Customer.
<br />Customer will cooperate fully (at UKG’s request and expense) with UKG in the defense, settlement, and compromise of
<br />any such action. Customer may retain its own counsel at its own expense, subject to UKG’s rights above.
<br />8.5 Government Control of Defense.If Customer is a US Federal, State, or Local governmental entity, then, to the extent
<br />required by law, the following will apply: Any provision of the Agreement requiring UKG to defend or indemnify Customer
<br />is hereby amended, solely to the extent required by Applicable Laws, to provide that the U.S. Department of Justice (for
<br />a Federal Customer) or applicable State Attorney General’s Office (for a SLED Customer) has the right to represent the
<br />respective Federal or SLED entity in litigation and other formal proceedings at its own cost. Subject to approval of the
<br />U.S. Department of Justice (for a Federal Customer) or applicable State Attorney General’s Office (for a SLED
<br />Customer),if applicable, Customer shall tender defense of action to UKG upon request by UKG.
<br />8.6 This “Indemnification” section states UKG’s sole liability and Customer’s exclusive remedy for all third party Claims and
<br />damages related to infringement.
<br />9.Limitations of Liability
<br />9.1 Monetary Cap.EXCEPT WITH RESPECT TO (I) UKG’S INTELLECTUAL PROPERTY INDEMNIFICATION
<br />OBLIGATIONS UNDER THIS AGREEMENT, (II) UKG’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT,
<br />AND (III) A CLAIM BY CUSTOMER FOR PERSONAL BODILY INJURY OR DEATH CAUSED BY UKG IN
<br />CONNECTION WITH THIS AGREEMENT, DURING ANY TWELVE (12) MONTH CONTRACT TERM (BEGINNING ON
<br />THE EFFECTIVE DATE OF THE APPLICABLE ORDER), UKG’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL
<br />CLAIMS IN CONNECTION WITH ANY SERVICE PROVIDED TO CUSTOMER SHALL IN NO EVENT EXCEED TWO
<br />TIMES (2X) THE AMOUNT PAID OR PAYABLE TO UKG DURING SUCH TWELVE (12) MONTH CONTRACT TERM
<br />FOR THE SERVICE GIVING RISE TO SUCH CLAIM(S).
<br />9.2 Exclusion of Damages.UKG WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL,
<br />SPECIAL, OR PUNITIVE DAMAGES; FOR THE COST OF ACQUIRING SUBSTITUTE OR REPLACEMENT
<br />SERVICES; OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOST
<br />GOODWILL, OR LOST DATA RESULTING FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT,
<br />HOWEVER CAUSED; OR ANY DAMAGES TO THE EXTENT CAUSED BY CUSTOMER’S DATA OR APPLICATIONS,
<br />CUSTOMER’S ALLOWANCE OF UNAUTHORIZED THIRD PARTY ACCESS, OR CUSTOMER’S INTRODUCTION OF
<br />MALICIOUS CODE.
<br />9.3 Applicability of Limitations.THESE LIMITATIONS APPLY FOR ANY REASON, REGARDLESS OF LEGAL THEORY
<br />AND THE REASON LIABILITY IS ASSERTED, EVEN IF UKG HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH
<br />DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANYTHING TO
<br />THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS SECTION OR ELSEWHERE IN THIS AGREEMENT
<br />SHALL OPERATE TO EXCLUDE OR LIMIT THE LIABILITY OF ANY PARTY TO THE EXTENT SUCH LIABILITY
<br />CANNOT LAWFULLY BE SO LIMITED OR EXCLUDED UNDER APPLICABLE LAW. INSOFAR AS APPLICABLE LAW
<br />REV: 01-16-26 MI
<br />ATTY/AGR.2026.009/UKG Kronos LLC (UKG Telestaff transition to Cloud) (Page 6 of 24)
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