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<br />Rev. 24.10.18 – Annex C – Terms and Conditions
<br />WHATSOEVER TO CUSTOMER NOR ANY OTHER PERSON IN CONNECTION WITH ANY OF
<br />THE FOREGOING. THE PARTIES DO NOT CONFER ANY RIGHTS OR REMEDIES UPON
<br />ANY PERSON OTHER THAN THE PARTIES TO THE AGREEMENT AND THEIR RESPECTIVE
<br />SUCCESSORS AND PERMITTED ASSIGNS.
<br />12. Limitation of Liability.
<br />12.1. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL PFM BE
<br />LIABLE FOR ANY LOSS OF INCOME, PROFITS, REPUTATION, SPECIAL, INDIRECT,
<br />INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THE
<br />AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE
<br />APPLICATION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />12.2. PFM’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES UNDER THE
<br />AGREEMENT, OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE
<br />APPLICATION, SHALL NOT UNDER ANY CIRCUMSTANCE EXCEED THE AMOUNT OF FEES
<br />ACTUALLY PAID BY CUSTOMER TO PFM UNDER THE AGREEMENT WITHIN THE TWELVE
<br />(12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.
<br />13. Indemnification.
<br />13.1. By PFM. PFM hereby agrees to defend and indemnify Customer against any damages awarded
<br />against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a
<br />third party claim, suit or proceeding that Customer’s use of the Application within the scope of the
<br />Agreement infringes any copyright or trade secret of a third party. PFM shall have no obligations
<br />or liability hereunder to the extent that the alleged infringement is based on the Customer Data.
<br />Without derogating from the foregoing defense and indemnification obligation, if PFM believes that
<br />the Application, or any part thereof, may infringe, then PFM may in its sole discretion: (i) obtain (at
<br />no additional cost to Customer) the right to continue to use the Application; (ii) replace or modify
<br />the allegedly infringing part of the Application so that it becomes non-infringing while giving
<br />substantially equivalent performance; or (iii) if PFM determines that the foregoing remedies are
<br />not reasonably available, then PFM may require that use of the (allegedly) infringing Application
<br />(or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any
<br />Licensing Fee paid for the unused portion of the subscription period. This Section states PFM's
<br />entire liability and Customer's exclusive remedy for infringement.
<br />13.2. By Customer. To the extent not prohibited under applicable law, Customer hereby agrees to
<br />defend and indemnify PFM against any damages awarded against PFM by a court of competent
<br />jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding arising
<br />from (a) the use of the Customer Data within the scope of the Agreement that infringes any
<br />intellectual property rights of a third party; (b) an unauthorized user’s access to the Application,
<br />including, but not limited to, access obtained by an unauthorized user through using valid
<br />Credentials; or (c) a claim that such third party suffered damages in reliance upon the output of
<br />the Application.
<br />13.3. General. The indemnification obligations of the indemnifying party under this section are subject
<br />to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying
<br />party being offered immediate and complete control over the defense and/or settlement of the
<br />claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying
<br />party’s expense, in the defense and/or settlement of such claim and not taking any action that
<br />prejudices the indemnifying party’s defense of or response to such claim.
<br />14. Confidential Information. Customer may have access to certain of PFM’s non-public and/or
<br />proprietary information, in any form or media, including (without limitation) confidential trade secrets and
<br />other information related to the Application, other products, software, technology, data, know-how, or
<br />business, whether written or oral, and any such other information that, regardless of the manner in which
<br />it is furnished and given the totality of the circumstances, a reasonable person or entity should have
<br />reason to believe is proprietary, confidential, or competitively sensitive ("Confidential Information").
<br />Customer shall take reasonable measures, at least as protective as those taken to protect its own
<br />confidential information, but in no event less than reasonable care, to protect PFM’s Confidential
<br />Information from disclosure to a third party. Customer shall not use or disclose the Confidential
<br />Information except as expressly permitted herein or required by applicable law. All right, title and interest
<br />in and to Confidential Information is and shall remain the sole and exclusive property of PFM. The terms
<br />of the Agreement are considered Confidential Information (although Customer may disclose the terms
<br />DocuSign Envelope ID: BA71619D-5796-4319-85EF-917E1B819551
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