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KANOPY MATERIALS, OR THAT USE OF THE KANOPY MATERIALS WILL BE
<br />ERROR -FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL
<br />MEET INSTITUTION'SOR END USERS' REQUIREMENTS.
<br />10. LIMITATION OF LIABILITY
<br />OTHER THAN WITH RESPECT TO KANOPY'S INDEMNIFICATION
<br />OBLIGATIONS UNDER SECTION 8(a): (A) IN NO EVENT SHALL KANOPY OR
<br />ITS AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL,
<br />INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST
<br />PROFITS OR COST OF COVER, ARISING FROM OR RELATING TO THIS
<br />AGREEMENT, INCLUDING DAMAGES ARISING FROM ANY TYPE OR
<br />MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED
<br />BY OR RESULTING FROM ANY ACCESS TO OR USE OF OR INABILITY TO
<br />ACCESS OR USE THE KANOPY MATERIALS, SUCH AS ANY MALFUNCTION,
<br />DEFECTOR FAILURE OF ANY KANOPY MATERIALS, EVEN IF KANOPY HAD
<br />ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH
<br />DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE
<br />FORESEEABLE; AND (B) IN NO EVENT SHALL KANOPY'S AGGREGATE
<br />LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES
<br />RECEIVED BY KANOPY FROM INSTITUTION UNDER THIS AGREEMENT IN
<br />THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE
<br />ON WHICH THE EVENTS GIVING RISE TO LIABILITYAROSE.
<br />11. Miscellaneous
<br />(a) Independent Contractors. The relationship between Kanopy and
<br />Institution established by this Agreement is solely that of independent
<br />contractors. Neither party is In any way the partner or agent of the other,
<br />nor is either party authorized or empowered to create or assume any
<br />obligation of any kind, implied or expressed, on behalf of the other party,
<br />without the express prior written consent of such other party.
<br />(b) Notice. All notices, demands and other communications to be
<br />given or delivered under or by reason of the provisions of this Agreement
<br />shall be in writing and sent to the parties as follows: (i) if to Kanopy, at
<br />the address set forth for Kanopy in the signature page herein, Attn: Legal
<br />Department, or, if different, in the most recent Order Form; (ii) if to
<br />Institution, at the address set forth for Institution in the signature page
<br />herein or, if different, in the most recent Order Form.
<br />(c) Assignment. Institution may not assign this Agreement, or assign
<br />or delegate any right or obligation hereunder, by operation of law or
<br />otherwise without the prior written consent of Kanopy. This Agreement
<br />shall be binding upon and inure to the benefit of the parties hereto and
<br />their respective successors and permitted assigns.
<br />(d) No Third -Party Beneficiaries. Nothing in this Agreement shall
<br />confer any rights upon any person or entity other than the parties hereto
<br />and their respective successors and permitted assigns.
<br />(e) Interpretation. For the purposes of this Agreement: (i) the words
<br />"such as," "include," "includes" and "including" shall be deemed to be
<br />followed by the words "without limitation;" (ii) the word "or" is not
<br />exclusive; and (ill) the words "herein," 'hereof, "'hereby," "hereto" and
<br />"hereunder" refer to this Agreement as a whole. This Agreement shall be
<br />construed without regard to any presumption or rule requiring
<br />construction or interpretation against the party drafting an instrument or
<br />causing any instrument to be drafted.
<br />(f) Entire Agreement. This Agreement contains the entire agreement
<br />of the parties with respect to the subject matter hereof and supersedes
<br />all previous or contemporaneous oral or written negotiations or
<br />agreements with respect to such subject matter.
<br />(g) Amendment. This Agreement may not be amended except in a
<br />writing executed by an authorized representative of each party.
<br />(h) Severability. If any provision of this Agreement shall be held to be
<br />invalid or unenforceable under applicable law, then such provision shall
<br />be construed, limited, modified or, if necessary, severed to the extent
<br />necessary to eliminate its invalidity or unenforceability, without in any
<br />way affecting the remaining parts of this Agreement.
<br />(i) Governing Law. This Agreement shall be governed by and
<br />construed and enforced, without regard to conflict of laws principles, in
<br />accordance with: (1) if Institution is domiciled in the United States or
<br />Canada, the laws of the state or province in which Institution is domiciled;
<br />or (ii) if Institution is domiciled outside the United States and Canada, the
<br />laws of the country in which Institution is domiciled. The United Nations
<br />Convention on Contracts forthe International Sale of Goods is specifically
<br />excluded from application to this Agreement.
<br />0) No Waiver. The failure of either party to require strict
<br />performance by the other party of any provision hereof shall not affect
<br />the full right to require such performance at anytime thereafter, nor shall
<br />the waiver by either party of a breach of any provision hereof be taken
<br />or held to be a waiver of the provision itself. Any waiver of the provisions
<br />of this Agreement, or of any breach or default hereunder, must be set
<br />forth in a written instrument signed by the party against which such
<br />waiver is to be enforced.
<br />(k) U.S. Government Entities. This section applies to access to or use
<br />of the Service by a branch or agency of the United States Government
<br />("U.S. Government"). The Service includes "commercial computer
<br />software" and "commercial computer software documentation" as such
<br />terms are used in 48 C.F.R. 12.212 and qualifies as "commercial items" as
<br />defined in 48 C.F.R. 2.101. Such Items are provided to the United States
<br />Government: (1) for acquisition by or on behalf of civilian agencies,
<br />consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for
<br />acquisition by or on behalf of units of the Department of Defense,
<br />consistent with the policies set forth in 48 C.F.R. 227.7202-1 and
<br />227.7202-3. The U.S. Government shall acquire only those rights set forth
<br />in this Agreement with respect to the such Items, and any access to or
<br />use of the Service by the U.S. Government constitutes: (1) agreement by
<br />the U.S. Government that that such items are "commercial computer
<br />software" and "commercial computer software documentation" as
<br />defined in this section; and (2) acceptance of the rights and obligations
<br />herein.
<br />(1) Force Maieure. Except with respect to payment obligations under
<br />Section 3, neither party shall be liable for any failure to perform under
<br />this Agreement to the extent due to any act of God, fire, casualty, flood,
<br />war, strike, lock out, failure of public utilities, injunction or any act,
<br />exercise, assertion or requirement of any governmental authority,
<br />epidemic, destruction of production facilities, insurrection or any other
<br />cause beyond the reasonable control of the party invokingthis provision.
<br />(m) Confidentiality. Each party acknowledges and agrees that it shall
<br />treat the terms and conditions of this Agreement, including any pricing
<br />information, as confidential information and not disclose such
<br />information to any third party except to the extent required by applicable
<br />law. For the avoidance of doubt, the parties acknowledge and agree that
<br />Kanopy may identify Customer as a Kanopycustomer, and Customer may
<br />identify Kanopy as a provider of content to Customer.
<br />(n) Counterparts. This Agreement may be executed in one or more
<br />counterparts, each of which shall be deemed an original, but all of which
<br />together shall constitute one and the same agreement.
<br />(o) Insurance Requirements. Kanopy shall procure and maintain for
<br />the duration of the Agreement, Insurance requirements as detailed in
<br />Exhibit A, attached hereto and incorporated by reference to this
<br />Agreement.
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