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A TRUE COPY CERTIFICATION ON LAST PAGE RYAN L. BUTLER, CLERK 9.4 Employer grants Lively the right to use its name and logo for marketing purposes. At any time, Employer may revoke Lively's ability to do this through written notice. Lively will cease to use Employer's name and/or logo after a reasonable period of time. 10. Limitation of Liability 10.1 LIVELY WILL NOT BE LIABLE TO EMPLOYER, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE CLAIM), FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION OR DELAY, LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. LIVELY WILL NOT BE LIABLE TO EMPLOYER FOR DAMAGES ARISING FROM, OR RESULTING FROM, ANY ACH FUNDS TRANSFER (WHETHER INITIATED MANUALLY IN THE APPLICATION, AS A RESULT OF AUTOMATIC FUNDS TRANSFER SETTINGS IN THE APPLICATION, OR THROUGH ANOTHER MECHANISM) RELATED TO: (a) EMPLOYER ERROR IN SETTING THE AUTOMATIC FUNDS TRANSFER FUNCTION OR FAILING TO ANTICIPATE ITS CONSEQUENCES; (b) ANY ADVERSE FINANCIAL, TAX OR OTHER CONSEQUENCES OF THE TRANSFER; (c) ANY FEES RELATED TO THE TRANSFER (INCLUDING WITHOUT LIMITATION OUTGOING AND INCOMING TRANSFER FEES AND INSUFFICIENT FUNDS FEES); (d) ANY CONSEQUENCES OF INCORRECT OR OUTDATED ACCOUNT OR BALANCE INFORMATION, WHETHER THAT INFORMATION WAS PROVIDED TO LIVELY THROUGH THE APPLICATION OR ANOTHER MECHANISM. ADDITIONALLY, THE AGGREGATE LIABILITY OF LIVELY TO EMPLOYER FOR ANY AND ALL LOSSES, DAMAGES, COSTS OR EXPENSES ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE CLAIM), WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL FEES ACTUALLY PAID BY EMPLOYER TO LIVELY UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. 10.2 NOTWITHSTANDING SECTION 10.1 ABOVE, IN NO EVENT WILL LIVELY BE LIABLE TO EMPLOYER FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHERWISE, ARISING OR RESULTING FROM MISTAKE, THEFT, FRAUD OR OTHER MISCONDUCT BY EMPLOYER IN CONNECTION WITH THE APPLICATION. 10.3 THE LIMITATIONS SET FORTH IN THIS SECTION 10 DO NOT APPLY TO ANY claim, damage, liability, loss, government procedure OR cost, including WITHOUT LIMITATION reasonable attorneys' fees, incurred or suffered by Employer to the extent arising from or attributable to the unauthorized access of Personal Information by any third party that is caused by the gross negligence or willful misconduct of Lively.