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DAMAGES FOR LOSS OF PROFITS, WORK STOPPAGE, SYSTEM FAILURE OR MALFUNCTION, LOSS OF DATA
<br />OR ANY OTHER DAMAGES OR LOSSES IN CONNECTION WITH THE USE OF THE INFORMATION SYSTEM OR
<br />OTHERWISE, EVEN IF S&S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />G. To the extent permitted by applicable law, except with respect to (a) S&S' intellectual property
<br />Indemnification obligation set forth in Section 8(h), or, (b) damages to tangible property or injury or death to persons, both
<br />parties agree that the aggregate liability of S&S for all claims, suits, actions and proceedings however arising, directly or
<br />indirectly, under or relating to this Agreement or its subject matter, including those based on breach or rescission of contract,
<br />tort, breach of trust, or breach of fiduciary duty shall not exceed, in the aggregate, the total value of fees paid by Customer to
<br />S&S for the item of software or services giving rise to such liability. Nothing in this paragraph shall be construed as creating a
<br />right on the part of Customer to receive any indirect, special, incidental or consequential damages, except to the extent such
<br />damages are expressly mandated by statute.
<br />H. In the event there is a third party claim alleging that Customer's use of the Application Software in accordance
<br />with this Agreement constitutes an infringement of a United States patent, copyright, or trade secret, S&S shall, at its expense,
<br />defend Customer and pay any final judgment against Customer or settlement agreed to by S&S on Customer's behalf, provided
<br />that Customer promptly notifies S&S of any such claim or proceeding and shall give S&S full and complete authority,
<br />information, and assistance to defend such claim or proceeding. S&S shall have sole control of the defense of any claim or
<br />proceeding and all negotiations for its compromise or settlement, provided that S&S shall consult with the Customer regarding
<br />any settlement of the claim.
<br />In the event that the Application Software product is finally held to be infringing and its use by the Customer
<br />is enjoined or S&S deems that it may be held to be infringing, S&S shall, at S&S' election: (1) procure for the Customer the
<br />right to continue use of the Application Software; or (2) modify or replace the Application Software so that it becomes non -
<br />infringing; or (3) in the event S&S determines that (1) or (2) is not commercially practicable, S&S may terminate the license
<br />with respect to the infringing module and refund or credit to Customer the license fees paid by Customer under this Agreement
<br />in connection with such module, less a pro rata credit for each full or partial month of the ten (10) year period and Customer
<br />shall return the original and all whole or partial copies of the module and related Documentation.
<br />S&S shall have no liability hereunder if the Customer has modified the Application Software in any manner
<br />without the prior written consent of S&S.
<br />The foregoing states S&S' entire liability, and the Customer's exclusive remedy, with respect to any claims
<br />of infringement of any copyright, patent, trade secret, or other property interest rights relating to the Information System, or
<br />any part thereof, or use thereof.
<br />I. The warranties contained in this Section-8 are in lieu of all other warranties, express or implied. S&S' express
<br />warranties shall not be enlarged, diminished or affected by, and no obligations or liabilities shall arise out of, S&S' rendering
<br />of technical or other advice or service in connection with the Third Party Software, Hardware and any other products. EXCEPT
<br />FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, S&S DISCLAIMS AND EXPRESSLY
<br />WAIVES ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
<br />WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO
<br />REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE WITH
<br />RESPECT TO THE GOODS OR SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, AND THAT CUSTOMER
<br />HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY SET OUT HEREIN.
<br />9. SOURCE CODE ESCROW
<br />The Customer may, at Customer's option, enter into an escrow arrangement with S&S. Upon the Customer's request, Customer
<br />shall be presented with the standard escrow beneficiary enrolment document for participation in S&S's source code escrow
<br />arrangement with an escrow agent (the "Escrow Agreement"). The Escrow Agreement shall specify that the Source Code may
<br />be made accessible to the Customer only in the event that S&S (a) whether directly or through a successor or affiliate, shall
<br />cease to be in the software business, (b) should be declared bankrupt or insolvent by a court of competent jurisdiction. The
<br />Source Code supplied pursuant to this Section shall be subject to each and every restriction on use and disclosure set forth in
<br />this Agreement, and the Customer acknowledges that the Source Code and its associated documentation is the property of S&S
<br />and will use its best efforts to prevent unauthorized use or disclosure of the Source Code.
<br />10. CONFIDENTIALITY
<br />Systems & Software, Inc.
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