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• SOFTWARE AS A SERVICE AGREEMENT • • • Master Terms and Conditions F R A C TA Online Version SHALL BE GIVEN FULL EFFECT EVEN IF THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE DEEMED BY AN ARBITRATOR OR COURT TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. This Section does not limit either party's liability for bodily injury, gross negligence or willful misconduct. 12.DISPUTE RESOLUTION 12.1 Negotiation. The Parties will make good faith efforts to resolve disputes through informal discussions between the appropriate representatives of the parties. Formal negotiation may be initiated by either party by sending written Notice of the description of the dispute to the other party. Within twenty (20) business days of the Notice, principals of both parties, who have the authority to settle the dispute, will meet to discuss resolution of the dispute. 12.2 Arbitration. If a dispute arising out of this Agreement cannot be resolved through formal negotiation, the dispute must be arbitrated according to the Commercial Arbitration Rules of the American Arbitration Association. The dispute shall be determined in accordance with the Agreement and the substantive laws of the State of California. It shall take place in San Mateo County, California, and the result shall be binding on both parties. The cost of the arbitration shall be borne equally by both parties. The parties hereby submit to the jurisdiction of the appropriate court for the purpose of confirming any agreed settlement arrived at during arbitration. 13.INDEMNIFICATION 13.1 Indemnification of Customer. Fracta agrees to defend Customer and its directors, officers and employees from and against any and all claims, demands, suits or proceedings made or brought against Customer by third parties, and agrees to pay or reimburse Customer for any and all damages, costs and expenses payable by Customer to such third party to the extent that they are awarded in a final judgment or agreed to in settlement, as a result of a claim against Customer, based upon or arising out of: (i) any dishonest, fraudulent, criminal, or negligent acts committed by Fracta, or any agent or employee of Fracta, acting pursuant to, or in connection with, the Agreement; or (ii) a claim that the use of the Software as a Service or the System as permitted hereunder infringes the intellectual property rights of a third party. As a condition of Fracta's indemnification obligation, Fracta Confidential Page 9 of 11 February 7, 2018