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2033 Oak Industrial Dr. NE, Grand Rapids, MI 49505 www.terryberry.com
<br />REV: 08-05-26 VR
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<br />claim, then Terryberry, at its sole discretion and at no additional expense to Customer, shall either: (i) procure the right for
<br />Customer to continue using the SaaS Products in accordance with the terms of this Agreement; or (ii) replace or modify the SaaS
<br />Products so that such SaaS Products become non-infringing. If Terryberry determines that neither (i) nor (ii) is available in a timely
<br />manner on commercially reasonable terms, then Terryberry may terminate Customer’s right to use the infringing SaaS Products, in
<br />which event Customer shall receive a pro-rata refund of all unused, pre-paid fees for the affected SaaS Products licensed in an
<br />Order for the period following termination as calculated on a monthly basis for the affected Services. This section titled
<br />“Indemnification” states the sole liability of Terryberry and the exclusive remedy of Customer with respect to any indemnification
<br />claims arising out of or related to this Agreement.
<br />8.5.Exclusions. The foregoing Terryberry obligations to defend and indemnify shall not apply to the extent a claim arises from or
<br />relates to: (a) use of the SaaS Products not in accordance with this Agreement or reasonable Terryberry instructions pertaining to
<br />the use of the SaaS Products; (b) Customer’s use of the SaaS Products in violation of applicable laws; (c) any modification,
<br />alteration, or conversion of the SaaS Products not created or approved in writing by Terryberry; (d) any combination of the SaaS
<br />Products with any computer, hardware, software, data, or service not provided by Terryberry; (e) Terryberry’s compliance with
<br />specifications, requirements, or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
<br /> 9.Limitation of Liability.
<br />9.1.Liability Cap. Except for liability caused by Terryberry’s indemnification obligations in Section 8.1, Customer’s indemnification
<br />obligations in Section 8.2, and Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability
<br />arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence),
<br />warranty, indemnity or any other legal theory, exceed the total amount paid or payable to Terryberry under this Agreement during
<br />the twelve (12) month period preceding the date of initial claim. The exclusions and limitations set forth in this Section 9.1 shall
<br />apply even if an exclusive remedy of Customer under this Agreement has failed of its essential purpose.
<br /> 9.2.Consequential Damages. Neither Party or its Affiliates will have any liability to the other Party, its Affiliates, or any third party
<br />for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising
<br />out of, or in connection with the supply, use, or performance of, or inability to use, the Services or arising out of or in connection
<br />with this Agreement, however caused, whether in contract, tort (including negligence), indemnity, breach or failure of express or
<br />implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, or any other legal theory,
<br />and whether or not the Party has been advised of the possibility of such damages.
<br />9.3.Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be
<br />limited or excluded by Applicable Law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross
<br />negligence, willful misconduct, or fraud.
<br /> 10.General Provisions.
<br /> 10.1.Force Majeure. Any delay in or failure of performance by either Party under this Agreement, other than a failure to pay
<br />amounts when due, shall not be considered a breach of this Agreement, and shall be excused to the extent caused by any
<br />occurrence beyond the reasonable control of such Party. Such acts shall include, but not be limited to, fortuitous events and acts of
<br />God; wars, riots, terrorism and insurrections; laws, decrees, ordinances and governmental regulations; change in Applicable Laws;
<br />strikes and lockouts; transportation stoppages or slowdowns; hurricanes, earthquakes, floods, fires and explosions; pandemics and
<br />epidemics; and shelter-in-place or similar orders. Notwithstanding the foregoing, if such act or condition beyond the reasonable
<br />control of such Party continues for a period of one hundred and eighty (180) days or more, the unaffected Party may, on notice to
<br />the Party affected, terminate this Agreement, and neither Party shall have any further obligation to the other save for those
<br />provisions hereunder which, by their terms, survive the termination or expiration of this Agreement.
<br /> 10.2.Compliance with Export Controls. Customer will not export, re-export, divert, transfer, or disclose, directly or indirectly, or
<br />allow the use of, any Subscription Services or Terryberry Intellectual Property, or any direct product thereof in violation of applicable
<br />United States export control requirements. Without limiting the generality of the immediately preceding sentence, Customer will not
<br />(i) re-export the SaaS Product or Terryberry Intellectual Property to, or allow the use of the Subscription Services or Terryberry
<br />ATTY/AGR.2026.217/Terryberry (Employee Service Awards) (Page 32 of 36)
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