Agreement - Master Sales & License Agreement - Implement Routeware for Solid Waste - Routware, Inc.

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8. LIMITATION OF LIABILITY 8.1 INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BYLAW AND EXCEPT WITH RESPECT TO THE FAILURE TO PAY AMOUNTS PROPERLY OWED, SECTION 10.1 (CONFIDENTIALITY), OR VIOLATIONS OF ROUTEWARE'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT DAMAGES THAT ARISE FROM OR RELATE TO THIS AGREEMENT (INCLUDING LOST PROFITS AND ANY OTHER INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES), WHETHER FORESEEABLE OR NOT AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8.2 TOTAL LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BYLAW AND EXCEPT WITH RESPECT TO THE FAILURE TO PAY AMOUNTS PROPERLY OWED, BREACHES OF SECTION 10.1 (CONFIDENTIALITY), OR VIOLATIONS OF ROUTEWARE'S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY'S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY WARRANTY CLAIMS) WILL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO ROUTEWARE IN THE 12 MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO LIABILITY. 8.3 Indemnification for Intellectual Property Right Infringement. 1. Subject to the terms and conditions set forth in this section "Indemnification for Intellectual Property Right Infringement", the Contractor shall, at its own expense, defend the Customer from and against any and all claims, suits, and proceedings brought by a third party (collectively "Claims") alleging that the Contractor's software, hardware, applications, or services (collectively known as "Products") that is used by the Customer directly infringes such third party's intellectual property rights and shall indemnify the Customer from and against liability, damages, and costs finally awarded or entered into in settlement (collectively, "Losses") to the extent based upon such Claims. 2. If a Claim of direct infringement as set forth above is brought, the Contractor shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect the Customer against such Claim without cost to the Customer; (b) to modify or replace all or portions of the Products as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the monthly service fees and Product fees paid for under the Agreement for the terminated portion of the Term upon which the Customer shall return all Products to the Contractor. The rights and remedies granted the Customer under this paragraph "2" of section "Indemnification for Intellectual Property Right Infringement" state the Contractor's entire liability, and the Customer' exclusive remedy, with respect to any claim of the Contractor Products' direct infringement of the intellectual property rights of a third party. 3. In the event of a potential indemnity obligation under the section "Indemnification for Intellectual Property Right Infringement", the Customer shall: (i) notify the Contractor in writing of such Claim within 30 days of receipt of the Claim; (ii) allow The Contractor to have sole control of its defense and settlement; and (iii) upon request of the Contractor, cooperate in all reasonable respects, at the Contractor's cost and expense, with the Contractor in the investigation, trial, and