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<br />contains substantially similar features and functionality, (b)
<br />seek to renegotiate mutually agreeable terms of the Services
<br />with Customer including consideration of alternative data
<br />sources and costs that may be associated with obtaining
<br />access to those sources.
<br />7. INDEMNITY
<br />Company shall hold Customer harmless from liability
<br />to third parties resulting from infringement by the Services
<br />of any United States patent or any copyright or
<br />misappropriation of any trade secret, provided Company is
<br />promptly notified of any and all threats, claims and
<br />proceedings related thereto and given reasonable assistance
<br />and the opportunity to assume sole control over defense and
<br />settlement; Company will not be responsible for any
<br />settlement it does not approve in writing. The foregoing
<br />obligations do not apply with respect to portions or
<br />components of the Services (i) not supplied by Company, (ii)
<br />made in whole or in part in accordance with Customer
<br />specifications, (iii) that are modified after delivery by
<br />Company, (iv) combined with other products, processes or
<br />materials where the alleged infringement relates to such
<br />combination, (v) where Customer continues allegedly
<br />infringing activity after being notified thereof or after being
<br />informed of modifications that would have avoided the
<br />alleged infringement, or (vi) where Customer’s use of the
<br />Services is not strictly in accordance with this Agreement. If,
<br />due to a claim of infringement, the Services are held by a
<br />court of competent jurisdiction to be or are believed by
<br />Company to be infringing, Company may, at its option and
<br />expense (a) replace or modify the Service to be non-
<br />infringing provided that such modification or replacement
<br />contains substantially similar features and functionality, (b)
<br />obtain for Customer a license to continue using the Service,
<br />or (c) if neither of the foregoing is commercially practicable,
<br />terminate this Agreement and Customer’s rights hereunder
<br />and provide Customer a refund of any prepaid, unused fees
<br />for the Service.
<br />
<br />Customer shall hold Company harmless from liability
<br />to third parties resulting from (i) infringement by any
<br />Customer Data, including any third-party data subscribed to
<br />by Customer and provided to Company for the provision of
<br />the Services, of any United States patent or any copyright or
<br />misappropriation of any trade secret, (ii) any nonfulfillment
<br />or breach of any covenant, agreement or other provision of
<br />this Agreement by the Customer, (iii) any marketing or
<br />investment decision made while using the Services, or (iv)
<br />any losses which Company may suffer, sustain or become
<br />subject to as a result of any claims or threatened claims
<br />against Company arising out of the actions or inactions of
<br />Customer with respect to the Customer’s business or the
<br />terms of this Agreement.
<br />
<br />8. LIMITATION OF LIABILITY
<br />NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON,
<br />NEITHER PARTY TO THIS AGREEMENT NOR THEIR
<br />SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL DATA,
<br />EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS,
<br />AFFILIATES, REPRESENTATIVES, CONTRACTORS AND
<br />EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH
<br />RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
<br />OR TERMS AND CONDITIONS RELATED THERETO UNDER
<br />ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
<br />OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE
<br />OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA,
<br />OUTSIDE THE PARTY’S REASONABLE CONTROL, OR COST
<br />OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
<br />TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY
<br />INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
<br />CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER
<br />BEYOND THE PARTY’S REASONABLE CONTROL; (D) FOR
<br />ANY MARKETING OR INVESTMENT DECISIONS MADE BY
<br />CUSTOMER WHILE USING THE SERVICES; OR (E) FOR ANY
<br />AMOUNTS THAT, TOGETHER WITH AMOUNTS
<br />ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED AN
<br />AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO
<br />COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN
<br />THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO
<br />THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE
<br />PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGES.
<br />9. MISCELLANEOUS
<br />If any provision of this Agreement is found to be
<br />unenforceable or invalid, that provision will be limited or
<br />eliminated to the minimum extent necessary so that this
<br />Agreement will otherwise remain in full force and effect and
<br />enforceable. This Agreement is not assignable, transferable
<br />or sublicensable by Customer except with Company’s prior
<br />written consent, which shall not be unreasonably withheld.
<br />This Agreement is the complete and exclusive statement of
<br />the mutual understanding of the parties and supersedes and
<br />cancels all previous written and oral agreements,
<br />communications and other understandings relating to the
<br />subject matter of this Agreement, and that all waivers and
<br />modifications must be in a writing signed by both parties,
<br />except as otherwise provided herein. No agency,
<br />partnership, joint venture, or employment is created as a
<br />result of this Agreement and Customer does not have any
<br />authority of any kind to bind Company in any respect
<br />whatsoever. In any action or proceeding to enforce rights
<br />under this Agreement, the prevailing party will be entitled to
<br />recover costs and attorneys’ fees. All notices under this
<br />Agreement will be in writing and will be deemed to have
<br />been duly given when received, if personally delivered; when
<br />receipt is electronically confirmed, if transmitted by facsimile
<br />or e-mail; the day after it is sent, if sent for next day delivery
<br />by recognized overnight delivery service; and upon receipt,
<br />if sent by certified or registered mail, return receipt
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