Service Master Subscription Agreement - NEC Corp of America - AFIS Annual Maintenance and WideNet Annual Subscription Fee

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connection with any Claim. Notwithstanding the foregoing, if the indemnified parry in its sole discretion so elects, such indemnified party may also participate in the defense of such Claims on a non -controlling basis by employing counsel at its expense, without waiving the indemnifying party's obligations to indemnify or defend. Neither party shall settle or compromise any Claim or consent to the entry of any judgment without the prior written consent of the other party and without an unconditional release of all liability by each claimant or plaintiff with respect to such other party. Except as excluded below, specifically with respect to NEC's indemnity obligation, NEC will defend and indemnify Subscriber against any third party claims or suits ("Actions") against Subscriber which allege infringement of a United States patent or copyright by the Software, provided that: (a) NEC is notified promptly in writing of the Action, (b) Subscriber gives NEC the sole right to defend and settle any suit, and (c) Subscriber fully cooperates in the defense when and as requested by NEC. Should continued use of Software be enjoined, NEC may at its option and expense, either: (a) if commercially reasonable, procure for Subscriber the right to continue using the affected Software, (b) replace or modify the same so that infringement is eliminated, or (c) if none of these alternatives are commercially reasonable, either party may terminate this Agreement and NEC shall issue a pro-rata refund of the Subscription fee. This indemnity shall not apply to any Claims or suits concerning: (a) items manufactured by NEC at Subscriber's request and according to Subscriber 's specifications, or (b) use of Software, or services in a manner or for a purpose not contemplated by this Agreement. The foregoing provisions state the entire liability and obligations of each party, and the exclusive remedy of the other, with respect to any alleged intellectual property infringement hereunder. 17. Limitation of Liability: EXCEPT FOR EITHER PARTY'S LIABILITIES ARISING FROM USE OF INTELLECTUAL PROPERTY BEYOND THE SCOPE PERMITTED BY THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES EXCEEDING THE SUBSCRIPTION FEES PAID OR PAYABLE TO THE OTHER PARTY UNDER THE TRANSACTION GIVING RISE TO THE CLAIM; AND NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE), ARISING OUT OF THIS AGREEMENT, (INCLUDING ANY DAMAGES ARISING UNDER ANY CLAIM OR NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY), EVEN IF THE PARTY INCURRING SUCH DAMAGES HAS ADVISED THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES. 18. Force Maj cure. Except for the obligation to pay monies due and owing, neither Party shall be responsible for any failure to perform or delay in performing any of its obligations hereunder where and to the extent that such failure or delay results from causes outside the reasonable control of the Party, including but not limited to governmental actions, acts of terrorism, transportation or labor strikes, environmental conditions, fire, flood, riot, strike, or life- or health -threatening conditions. v11222017