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to seek arrangements to protect the confidentiality and proprietary
<br /> nature of such Confidential Information. IN NO EVENT SHALL MOBILEGUARD BE LIABLE
<br /> FOR ANY DAMAGES,WHETHER IN CONTRACT OR TORT
<br /> (c) Injunctive Relief. The parties agree that a (INCLUDING NEGLIGENCE), INCLUDING BUT NOT
<br /> breach of any of the obligations set forth in this Section 7 would LIMITED TO INDIRECT, SPECIAL, INCIDENTAL,
<br /> irreparably harm and damage the other party. As such, the PUNITIVE, COVER, RELIANCE, CONSEQUENTIAL OR
<br /> Disclosing Party shall be entitled to seek and obtain immediate EXEMPLARY DAMAGES, ARISING OUT OF OR IN
<br /> injunctive relief to stop any disclosure or threatened disclosure of CONNECTION WITH THIS AGREEMENT OR THE USE,THE
<br /> the Disclosing Party's Confidential Information, without any RESULTS OF USE, OR THE INABILITY TO USE THE
<br /> limitation to any other remedies available to the Disclosing Party. PRODUCTS OR SERVICES OR FOR COSTS OF
<br /> PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
<br /> (d) Survival of Confidentiality Obligations. Upon LOST PROFITS, LOST SALES OR BUSINESS
<br /> termination of this Agreement,each party shall return to the other EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN
<br /> party any Confidential Information of such other party that it has CONNECTION WITH ANY BUSINESS, LOSS OF ANY
<br /> in tangible form in its possession. The obligations set forth in this GOODWILL, LOST, DESTROYED OR CORRUPTED DATA,
<br /> Section 7 shall survive termination of this Agreement and remain HOWEVER CAUSED, ON ANY THEORY OF LIABILITY,
<br /> in effect so long as the Receiving Party possesses or has access to AND WHETHER OR NOT MOBILEGUARD HAS BEEN
<br /> the Disclosing Party's Confidential Information, whether in ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO
<br /> tangible or intangible form. EVENT SHALL MOBILEGUARD'S AGGREGATE
<br /> LIABILITY UNDER THIS AGREEMENT EXCEED THE
<br /> 8. WARRANTY DISCLAIMER. LESSER OF (I) ONE HUNDRED THOUSAND DOLLARS
<br /> ($100,000); OR (II) AN AMOUNT EQUIVALENT TO THE
<br /> EXCEPT AS EXPRESSLY SET FORTH IN THIS FEES ACTUALLY PAID BY CUSTOMER UNDER THIS
<br /> AGREEMENT, MOBILEGUARD MAKES NO AGREEMENT DURING THE SIX(6)MONTHS PRECEDING
<br /> REPRESENTATIONS OR WARRANTIES, EXPRESS OR THE EVENT GIVING RISE TO THE CLAIM.
<br /> IMPLIED, REGARDING USE OF OR RELIANCE ON THE
<br /> PRODUCTS OR SERVICES, AND THE PRODUCTS AND 10. Indemnification.
<br /> SERVICES ARE PROVIDED ON AN "AS IS" AND "AS
<br /> AVAILABLE" BASIS. THE WARRANTIES OF (a) Each party shall indemnify, defend,and hold
<br /> MOBILEGUARD SET FORTH IN THIS SECTION 8 ARE harmless the other party and its officers, employees, agents,
<br /> EXCLUSIVE AND IN SUBSTITUTION FOR, AND affiliates, successors and assigns from and against all claims,
<br /> MOBILEGUARD HEREBY DISCLAIMS, ALL OTHER actions, demands, and suits by third parties, and all losses,
<br /> WARRANTIES, OBLIGATIONS AND LIABILITIES, liabilities, damages, costs, and expenses associated therewith
<br /> EXPRESS OR IMPLIED, ARISING BY LAW OR (including reasonable attorneys' fees) arising from or in
<br /> OTHERWISE, WITH RESPECT TO ANY DEFECT, connection with (i) such party's material breach of any of its
<br /> DEFICIENCY, DATA INACCURACY, OR representations or warranties under this Agreement;and(ii)such
<br /> NONCONFORMITY IN THE PRODUCTS, SERVICES OR party's gross negligence, willful misconduct, or violation of the
<br /> ANY OTHER MATERIALS PROVIDED UNDER THIS law.
<br /> AGREEMENT,INCLUDING BUT NOT LIMITED TO ANY:(I)
<br /> IMPLIED WARRANTY OF MERCHANTABILITY OR (b) By Customer. Customer shall indemnify,
<br /> FITNESS FOR A PARTICULAR PURPOSE; (II) IMPLIED defend, and hold harmless MobileGuard and its officers,
<br /> WARRANTY ARISING FROM COURSE OF employees, agents, affiliates, successors and assigns from and
<br /> PERFORMANCE, COURSE OF DEALING, OR USAGE OF against all claims,actions,demands,and suits by third parties,and
<br /> TRADE; AND(III)ANY OBLIGATION, LIABILITY, RIGHT, all losses, liabilities, damages, costs, and expenses associated
<br /> REMEDY OR CLAIM IN TORT,NOTWITHSTANDING ANY therewith(including reasonable attorneys'fees)arising from or in
<br /> FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT connection with any allegation relating to Customer's use,or any
<br /> LIABILITY OF MOBILEGUARD (WHETHER ACTIVE, of its End Users' use, of the Products or Services (i) for any
<br /> PASSIVE OR IMPUTED). MOBILEGUARD DOES NOT purpose other than those expressly permitted under this
<br /> WARRANT THAT OPERATION OF OR USE OF THE Agreement,or(ii)in combination with other mobile applications
<br /> PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, or computer programs not licensed by MobileGuard to Customer.
<br /> ERROR-FREE. CUSTOMER WILL BEAR ALL RISK
<br /> ASSOCIATED WITH ANY USE OF A WIRELESS (c) By MobileGuard. MobileGuard shall defend,
<br /> COMMUNICATIONS NETWORK OR DATA at its expense,any claim,lawsuit or related action brought against
<br /> TRANSMISSION,INCLUDING BUT NOT LIMITED TO LOSS Customer alleging that the Application or Services infringe a
<br /> OF DATA, BY OR ON BEHALF OF CUSTOMER UNDER United States patent or copyright, and shall pay all costs and
<br /> THIS AGREEMENT,INCLUDING WITH RESPECT TO ANY damages finally awarded. In the event of any such claim,
<br /> MALWARE,VIRUS OR DESTRUCTIVE CODE RESULTING Customer, upon MobileGuard' request, shall immediately cease
<br /> THEREFROM, AND MOBILEGUARD DISCLAIMS ALL using the Products and Services, and MobileGuard will use
<br /> LIABILITY AND RESPONSIBILITY IN CONNECTION WITH commercially reasonable efforts to (i) procure for Customer the
<br /> SUCH USE. right to continue to use the Products and Services as set forth in
<br /> this Agreement,(ii)provide a reasonable workaround solution,or
<br /> 9. Limitation of Liability. (iii)replace or modify the Products and Services to make their use
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