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downtime resulting from systems over which FirstTwo has no control, for instance, major Internet disruption, or (iii) force
<br /> majeure. Should the Software be available for less than the Uptime Guarantee, FirstTwo will, at the written request of the
<br /> Customer, refund an equitable portion of the fee paid by Customer (e.g., a prorated amount based on the total Software
<br /> availability for the month)for the Software.
<br /> 7.3 Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE WARRANTIES SET FORTH IN
<br /> THIS SECTION 7 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF FIRSTTWO, EXPRESS, IMPLIED OR
<br /> STATUTORY, WITH RESPECT THERETO OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED
<br /> WARRANTIES OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
<br /> INFRINGEMENT, SECURITY, PRIVACY, ACCURACY OF RESULTS OR CUSTOMER'S USE THEREOF, OR ARISING
<br /> FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. FOR CLAIRTY, ANY USE OR RELIANCE ON THE
<br /> SOFTWARE BY CUSTOMER OR CUSTOMER'S END USERS SHALL BE AT CUSTOMER'S AND END USERS OWN RISK.
<br /> 8. CONFIDENTIALITY
<br /> 8.1 Confidential Information. Notwithstanding any prior agreement between the Parties, this Section 8 shall govern the
<br /> use and disclosure of Confidential Information in connection with any License. "Confidential Information" means all
<br /> confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"),
<br /> whether orally or in writing, in connection with a License that is designated as confidential or that should be understood by a
<br /> reasonable Receiving Party to be confidential given the nature of the information and the circumstances of disclosure.
<br /> FirstTwo Confidential Information includes, without limitation, the Software, the FirstTwo Property and all outputs, object code,
<br /> source code, log files, scripting language or binary format, if any, made available to Customer. Customer Confidential
<br /> Information, if any, shall be as described in the Order. Receiving Party shall not disclose or use any Confidential Information of
<br /> Disclosing Party for any purpose outside the scope of this Agreement and, without limiting the foregoing, Customer shall not
<br /> disclose any FirstTwo Property to any third party. Receiving Party agrees to protect Disclosing Party's Confidential Information
<br /> in the same manner that it protects its own proprietary and confidential information, but in no event with less than reasonable
<br /> care. Receiving Party shall not have any obligation to protect information of Disclosing Party which it can reasonably
<br /> demonstrate: (a) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (b)
<br /> was lawfully in its possession prior to disclosure by Disclosing Party; (c) it independently developed without breach of any
<br /> obligation to Disclosing Party; (d) it lawfully received from a third party;or(e) it is required to disclose by a court order or other
<br /> government demand that has the force of law, provided it gives Disclosing Party prompt notice thereof. Upon any actual or
<br /> threatened use or disclosure of any Confidential Information of Disclosing Party in breach of this Section 8, Disclosing Party
<br /> shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being
<br /> specifically acknowledged by the Parties that any other available remedies may be inadequate. The obligations in this Section
<br /> 8 will continue in perpetuity.
<br /> 8.2 Public Disclosure. Notwithstanding anything to the contrary in this Agreement, if Customer is an agency subject to
<br /> disclosure of information under its respective state public records act, state law or other regulation, no obligation assumed by
<br /> Customer under this Agreement will be deemed to be inconsistent with Customer's obligations as defined under such act as
<br /> interpreted by Customer. If Customer receives a request for public records under such act for documents containing Company
<br /> Confidential Information, and if Customer concludes that the documents are not otherwise exempt from public disclosure,
<br /> Customer will provide Company notice of the request before releasing such documents. Such notice will be provided in a
<br /> timely manner to afford Company sufficient time to review such documents and/or seek a protective order, at Company's
<br /> expense. Customer will have no other obligation to protect Company Confidential Information from disclosure in response to a
<br /> request for public records.
<br /> 9. PUBLICITY
<br /> Notwithstanding the foregoing, FirstTwo may, with the prior written consent of Customer (and separate from this Agreement),
<br /> use Customer's name and logo in a list of customers and in sales presentations, marketing materials, and press releases. In
<br /> addition, FirstTwo may develop a brief Customer profile for promotional purposes,the contents of which shall be reviewed with
<br /> Customer prior to publication, for use by FirstTwo on its website, www.firsttwo.com. Further, if Customer submits a testimonial
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