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<br />GDSVF&H\9154876.4
<br />GDSVF&H\9154876.4 LA515\1\1011954.v2
<br />10.4 Feedback. If Customer or any of its employees or contractors sends or transmits any communications
<br />or materials to BS&A by mail, email, telephone, or otherwise, suggesting or recommending changes to the BS&A IP,
<br />including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or
<br />the like (“Feedback”), BS&A is free to use such Feedback irrespective of any other obligation or limitation between the
<br />Parties governing such Feedback.
<br />11. Mutual Warranties; Disclaimer of Other Warranties.
<br />11.1 Mutual Warranties. Each party hereby represents and warrants to the other that: (i) it has the full right,
<br />power, and authority to enter into, execute, and perform its obligations under this Agreement without any conflict with
<br />or violation of any other obligations to which it may be subject; and (ii) this Agreement is binding on such party in
<br />accordance with its terms.
<br />11.2 Disclaimer of Other Warranties. THE BS&A IP IS PROVIDED “AS IS” AND BS&A HEREBY DISCLAIMS ALL
<br />WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BS&A SPECIFICALLY DISCLAIMS ALL IMPLIED
<br />WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL
<br />WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BS&A MAKES NO WARRANTY OF ANY
<br />KIND THAT THE BS&A IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER
<br />PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR
<br />WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL
<br />CODE, OR ERROR FREE.
<br />12. Indemnification.
<br />12.1 BS&A Indemnification.
<br />(a) BS&A shall indemnify, defend, and hold harmless Customer from and against any and all
<br />losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any
<br />third-party claim, suit, action, or proceeding (“Third -Party Claim”) brought against Customer alleging that the Platform, or
<br />any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual
<br />property rights; provided that Customer promptly notifies BS&A in writing of the claim, cooperates with BS&A, and allows
<br />BS&A sole authority to control the defense and settlement of such claim.
<br />(b) If such a claim is made or appears possible, Customer agrees to permit BS&A, at BS&A’s sole
<br />discretion: to (i) modify or replace the Platform, or component or part thereof, to make it non-infringing; or (ii) obtain the
<br />right for Customer to continue use. If BS&A determines that neither alternative is reasonably commercially available, BS&A
<br />may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on
<br />written notice to Customer, and as Customer’s sole and exclusive remedy therefor, BS&A will provide to Customer a
<br />prorated refund of prepaid, unused Fees attributable to the Platform (and not including any one-time Fees for Professional
<br />Services).
<br />(c) This Section 12.1 will not apply to the extent that the alleged infringement arises from: (i) use
<br />of the Platform in combination with data, software, hardware, equipment, or technology not provided by BS&A or
<br />authorized by BS&A in writing; (ii) modifications to the Platform not made by BS&A; (iii) Customer Data; or (iv) Third-Party
<br />Products.
<br />12.2 Customer Indemnification. To the extent permitted under applicable laws, Customer shall indemnify,
<br />hold harmless, and, at BS&A’s option, defend BS&A from and against any Losses resulting from any Third-Party Claim
<br />alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or
<br />misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customer’s or
<br />any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Platform in a manner not authorized by this
<br />Agreement; or (iii) use of the Platform in combination with data, software, hardware, equipment or technology not
<br />provided by BS&A or authorized by BS&A in writing; in each case provided that Customer may not settle any Third-Party
<br />Claim against BS&A unless BS&A consents to such settlement, and further provided that BS&A will have the right, at its
<br />option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own
<br />choice.
<br />12.3 Sole Remedy. THIS SECTION 12.31 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BS&A’S SOLE
<br />LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM INFRINGE,
<br />MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
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