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PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY SMARTWORKS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES AND SHALL NOT EXCEED IN THE AGGREGATE (2x) ANNUAL HOSTING FEES PAID BY CUSTOMER TO SMARTWORKS UNDER THIS AGREEMENT DURING THE THEN - CURRENT TERM OF THE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION (AND IN NO EVENT BEING GREATER THAN 12 MONTHS). CUSTOMER FURTHER AGREES THAT IN NO EVENT SHALL SMARTWORKS OR ITS THIRD PARTY SERVICE PROVIDER BE LIABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, FOR ANY INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, LOSS OF REVENUE, FAILURE TO REALIZE ANTICIPATED SAVINGS, LOST OR DAMAGED DATA, LOSS OF GOODWILL, BUSINESS OPPORTUNITIES OR REPUTATION, OR ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE FORESEEABLE. 10. Suspension and Termination (a) Suspension of Hosting Services. In addition to any other rights that SmartWorks may have under this Agreement, at law or in equity, SmartWorks may suspend, limit or terminate Customers' use of the Hosting Services if SmartWorks determines there is a material breach of this Agreement, a security breach, or violation of law by Customer or any User. If SmartWorks'service provider determines that the cause of the suspension can reasonably be remedied, SmartWorks will provide notice of the actions Customer and its Users must take to reinstate the Hosting Services. If such action is not taken within a reasonable time, SmartWorks may terminate this Agreement effectively immediately upon written notice to Customer to that effect. (b) This Agreement may be terminated as follows: If SmartWorks is in material breach of any of its obligations or any provision under this Agreement, Customer must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, SmartWorks must correct the default at no additional cost to Customer within ninety (90) days, or issue a written notice of its own disputing the alleged default within thirty (30) days, of the date of receipt of a Default Notice. If SmartWorks fails to correct the default within such ninety (90) day period, and did not issue a notice disputing the alleged default within such thirty (30) day period, Customer may terminate this Agreement upon written notice to SmartWorks to that effect If Customer has failed to pay any amounts when due under this Agreement, SmartWorks shall have the right to (i) suspend performance of the Hosting Services (including Customer access to the Hosting Services) until all amounts are paid in full; and/or (ii) terminate this Agreement effective immediately upon written notice to Customer to that effect. SmartWorks may terminate this Agreement effective immediately upon written notice to Customer if Customer has breached its obligations of confidentiality or any intellectual property right or proprietary right of SmartWorks or its service provider or in accordance with Section 10(a) in the event of a material breach by Customer. iv. Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favorably to the subject party within ninety (90) days of commencement thereof; or (iii) becomes subject to property seizure under court order, court injunction or other court order which has a material adverse effect on its ability to perform hereunder. N. Hams Computer Corporation —Confidential Page 7 of 18