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a Vlode,
<br />software
<br />Customer has purchased from Avolve hosting of the Avolve SAAS Solution on the Microsoft® Windows AzureTM
<br />platform, and Microsoft Corporation terminates the Customer's Microsoft Customer Agreement during a
<br />Subscription Term, Avolve and Customer shall act in good faith to determine a mutually acceptable replacement
<br />provider promptly upon receiving notice of Microsoft Corporation's intent to terminate the Customer's
<br />Microsoft Customer Agreement.
<br />5. Force Maieure. Any delay or nonperformance of any provision of this Agreement (other than for the payment
<br />of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party,
<br />including but not limited to governmental acts and orders, civil unrest, war, disease, labor disputes, criminal
<br />acts, fire, flood, or other similar conditions, shall not constitute a breach of this Agreement, and the time for
<br />performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the
<br />conditions preventing performance. The parties acknowledge execution of this agreement during the "COVID-
<br />19" pandemic shall not prevent either party from invoking its force majeure rights hereunder.
<br />6. Confidentiality. Each party shall use commercially reasonable efforts to hold confidential information
<br />("Confidential Information") of the other in confidence. All Confidential Information (including but not limited
<br />to data) shall (i) remain the sole property of the disclosing party and (ii) be used by the receiving party only as
<br />authorized herein. Information will not be considered to be Confidential Information if (i) available to the public
<br />other than by a breach of this agreement; (ii) rightfully received from a third party not in breach of any obligation
<br />of confidentiality, (iii) independently developed by or for a party without access to Confidential Information of
<br />the other; (iv) lawfully known to the receiving party at the time of disclosure, (v) produced in compliance with
<br />applicable law, including the California Public Records Act, securities reporting requirement or a government or
<br />court order, provided the other party is given notice and an opportunity to intervene; or (vi) it does not
<br />constitute a trade secret and more than three (3) years have elapsed from the date of disclosure. If Avolve
<br />receives a request for Customer Data (either directly or as redirected to Avolve by the Microsoft Corporation),
<br />then Avolve shall redirect the law enforcement agency to request that data directly from Customer. If com pelted
<br />to disclose Customer Data to law enforcement, then Avolve shall promptly notify Customer and provide a copy
<br />of the demand, unless legally prohibited from doing so. To the extent required by law, Customer shall notify
<br />individual Users that their data may be processed for the purpose of disclosing it to law enforcement of other
<br />governmental authorities as directed by Avolve, and shall obtain the User's consent to the same.
<br />7. Indemnification; Limitation of Liability.
<br />a. Indemnification. If a third party makes a claim against the Customer that any Customer's use of the
<br />Avolve SAAS Solution in accordance with the terms of this Agreement infringes such third party's
<br />intellectual property rights, Avolve, at its sole cost and expense, will defend Customer against the claim
<br />and indemnify Customerfrom the damages, losses, liabilities, costs and expenses awarded bythe court
<br />to the third party claiming infringement or the settlement agreed to by Avolve, provided that Customer:
<br />(i) notifies Avolve promptly in writing of the claim; (ii) gives Avolve sole control of the defense and any
<br />settlement negotiations; and (iii) gives Avolve reasonable assistance in the defense of such claim. If
<br />Avolve believes or it is determined that the Avolve SAAS Solution has violated a third party's intellectual
<br />property rights, Avolve may choose to either modify the Avolve SAAS Solution to be non -infringing or
<br />obtain a license to allow for continued use, or if these alternatives are not commercially reasonable,
<br />Avolve may terminate Customer's use rights and refund any unused, prepaid fees Customer may have
<br />paid to Avolve. If Customer believes or it is determined that the Avolve SAAS Solution has violated a
<br />third party's intellectual property rights, Customer may choose to immediately terminate this
<br />Agreement and Avolve shall refund any unused, prepaid fees Customer may have paid to Avolve.
<br />Avolve will not indemnify the Customer to the extent that the alleged infringement arises from (1) the
<br />combination, operation, or use of the Avolve SAAS Solution with products, services, information,
<br />materials, technologies, business methods or processes not furnished by Avolve; (2) modifications to
<br />the Avolve SAAS Solution, which modifications are not made by Avolve; (3) failure to use updates to
<br />the Avolve SAAS Solution provided by Avolve; or (4) use of Avolve SAAS Solution except in accordance
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