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importance, but with no less than reasonable care. A receiving party shall promptly notify the disclosing party of the
<br /> misappropriation or misuse of Confidential Information of disclosing party.
<br /> (iii) Injunction. Customer agrees that breach of this Section pertaining to PES'Confidential Information would cause PES
<br /> irreparable injury,for which monetary damages would not provide adequate compensation. In such instance,PES will be
<br /> entitled to injunctive relief against such breach or threatened breach,without PES proving actual damages or posting a bond
<br /> or other security.
<br /> INDEMNIFICATION
<br /> (i) IP Infringement. PES shall defend and indemnify Customer from any damages, costs, liabilities, expenses (including
<br /> reasonable and actual attorney's fees) ("Damages") actually incurred or finally adjudicated as to any third-party claim or
<br /> action alleging that the Software delivered pursuant to this Agreement infringe or misappropriate any third party's patent,
<br /> copyright,trade secret or other intellectual property rights enforceable in the applicable jurisdiction(each an"Indemnified
<br /> Claim").
<br /> (ii) IP Remedies. If a Claim is likely to occur,PES shall at its option:(a)obtain a right for Customer to continue using such
<br /> PES Offering;(b)modify such PES Offering to make it a non-infringing equivalent;or(c)replace such PES Offering with a
<br /> non-infringing equivalent.If(a),(b),or(c)above are not reasonably available,either PES or Customer y may,at its option,
<br /> terminate this Agreement and/or use of the subject PES Offerings In such instance,PES will refund any pre-paid Fees on a
<br /> pro-rata basis for the allegedly infringing PES Offering.Notwithstanding the foregoing,PES shall have no obligation
<br /> hereunder for any claim resulting or arising from(a)Customer's breach of this Agreement;(b)modifications made to the
<br /> PES Offerings that were not performed or provided by or on behalf of PES;or(c) the combination,operation or use by
<br /> Customer or anyone acting on Customer's behalf of the PES Offerings in connection with a third-party product or service
<br /> (the combination of which causes the infringement).
<br /> (iii) Sole IP Liability. This Section is PES's sole obligation and liability,and Customer's sole remedy,for potential or actual
<br /> intellectual property infringement by the Software.
<br /> (iv) Indemnification Procedures. The party seeking indemnification(the"Indemnified Party")must give prompt written notice
<br /> of such Claim to the other party(the"Indemnifying Party"),accompanied by copies of any written documentation regarding
<br /> the Claim received by the Indemnified Party. The Indemnifying Party shall compromise or defend,at its own expense and
<br /> with its own counsel,any such Claim. The Indemnified Party will have the right,at its option,to participate in the
<br /> settlement or defense of any such Claim,with its own counsel and at its own expense;provided,however,that the
<br /> Indemnifying Party will have the right to control such settlement or defense. The Indemnifying Party will not enter into any
<br /> settlement that imposes any liability or obligation on the Indemnified Party without the Indemnified Party's prior written
<br /> consent.The parties will cooperate in any settlement or defense and give each other full access to all relevant information,at
<br /> the Indemnifying Party's expense.
<br /> (v) Government. Even though Customer may be a government entity,it shall be and remain liable for breaches of this
<br /> Agreement including those of its Users for,among other things,nonpayment and breach of the intellectual property rights
<br /> of a third party(i.e.,due to its use of the PES Offerings). Upon the occurrence of a breach,Customer shall be responsible
<br /> for the consequences thereof and making PES whole therefrom including,without limitation,payment of all direct
<br /> damages and PES'reasonable legal fees. Upon request,User shall return all Confidential Information and copies thereof
<br /> to PES when requested(i.e.,in hard copy and electronic format).
<br /> GOVERNMENT REGULATIONS.
<br /> Customer agrees that it shall comply with all applicable import,export and anti-corruption statutes and regulations of the United
<br /> States in connection with the manufacture, sale and distribution of the PES Offerings including,without limitation,the Foreign
<br /> Corrupt Practices Act. Customer agrees to indemnify and hold harmless PES from all claims, demands, damages, costs, fines,
<br /> penalties,attorneys'fees and all other expenses arising from User's failure to comply with this provision and/or applicable laws,
<br /> rules and/or regulations governing its use of the PES Offerings.
<br /> LIMITATION OF LIABILITY.
<br /> (i) LIMITATION(IF DAMAGES.UNDER NO CIRCUMSTANCES SHALL PES OR CUSTOMER BE LIABLE FOR
<br /> ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING
<br /> CLAIMS FOR DAMAGES FOR LOST PROFITS, GOODWILL, USE OF MONEY, INTERRUPTED OR
<br /> IMPAIRED USE OF THE SOFTWARE,AVAILABILITY OF DATA, STOPPAGE OF WORK OR IMPAIRMENT
<br /> OF OTHER ASSETS.
<br /> (ii) LIMITATION OF LIABILITY. WITH THE EXCEPTION OF IP INFRINGEMENT, BREACH OF
<br /> CONFIDENTIALITY, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PES' MAXIMUM
<br /> AGGREGATE LIABILITY FOR ALL CLAIMS OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH
<br /> THIS AGREEMENT, SHALL NOT EXCEED THE FEES PAID BY OR ON BEHALF OF CUSTOMER TO PES
<br /> WITHIN THE PRECEDING 12-MONTH PERIOD.
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