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n• <br /> v <br /> MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. <br /> Licensor's entire liability and Licensee's sole and exclusive remedy for breach of the foregoing <br /> warranty shall be, at Licensee's option,to have Licensor: <br /> • Repair the defects or <br /> • Replace the Software or <br /> • Return to Licensee the maintenance fee for the period in which the Software did not perform <br /> according to this warranty if the previous two options have been exhausted and did not remedy <br /> the breach of the foregoing warranty. <br /> 10. INDEMNITY <br /> Licensor shall indemnify, hold harmless, and defend,with counsel acceptable to Licensee,the <br /> Licensee (including its elected officials, officers, agents and employees) from and aga'nst any and all <br /> claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court <br /> costs and attorney's fees) resulting or arising from performance, or failure to perform,under this <br /> Agreement. <br /> Claims which trigger Licensor's responsibility under this Section 10 shall include any claims that the <br /> software resulting from the provision of Services pursuant to the attached Exhibit A Scope of Services <br /> infringe any patent, trademark, service mark, copyright,or accidental or intentional violation of a trade <br /> secret or other intellectual property of a third party not included in this Agreement. Licensor shall, in <br /> its reasonable judgment and at its option and expense: (i) obtain for the Licensee the right to continue <br /> using the Software; or(ii)replace or modify the Software so that it becomes non-infringing while <br /> giving equivalent performance. Licensor shall not have any liability for a claim alleging that any <br /> Software infringes a patent or copyright if the alleged infringement was developed based on <br /> information furnished by the Licensee or if the alleged infringement is the result of a modification <br /> made by the Licensor, at the direction of the Licensee or with Licensee approval. Licensee shall be <br /> responsible for maintaining appropriate licenses for software not provided by Licensor. <br /> Licensee shall indemnify,hold harmless, and defend Licensor from and against claims resulting from <br /> Licensee's use or reproduction of the Software in violation of this Agreement. <br /> Should any claim subject to indemnity be made against Licensor or Licensee,the party against whom <br /> the claim is made agrees to provide the other party with prompt written notice of the claim. The <br /> 4 20 <br />