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to FirstTwo, then Customer also agrees that FirstTwo may publish such testimonial on www.firsttwo.com or in such other
<br /> marketing material that FirstTwo may create or display from time to time, on such page and in such position as FirstTwo may
<br /> determine in its sole discretion. Customer agrees that FirstTwo may edit any such testimonial and publish edited or partial
<br /> versions of the testimonial; provided, however, that such testimonial does not create a misleading impression of Customer
<br /> views.
<br /> 10. INDEMNIFICATION
<br /> 10.1 By FirstTwo. FirstTwo agrees to defend and hold Customer harmless from any third party claim that the Software (as
<br /> delivered) licensed by Customer and used by authorized End Users in the manner contemplated hereby infringes such third
<br /> party's valid U.S. patent or copyright rights that were in existence at the time the Software was delivered to Customer and pay
<br /> that portion of any final judgment (or any settlement approved by FirstTwo) awarded against Customer directly attributed to
<br /> such infringement. In the event of a claim subject to indemnity under this Section 10.1, FirstTwo may, at its sole option and its
<br /> own expense, (a) procure for Customer the right to continue using the infringing Software; (b) modify the same so that it
<br /> becomes non-infringing; (c) replace the infringing Software with non-infringing Software; or (d) terminate the License and
<br /> refund to Customer the license fees paid therefore for a period no greater than twelve (12) months preceding the claim giving
<br /> rise to the indemnity. Notwithstanding any other provision of this Agreement, FirstTwo shall have no obligation under this
<br /> Section 10.1 for modifications or changes to the Software made by any person other than FirstTwo or at the direction of
<br /> Customer,or for any combination of the Software with any products or services or materials provided by Customer or any third
<br /> party. This Section 10.1 sets forth FirstTwo's sole obligation and Customer's sole remedy for any claim that the Software
<br /> infringes the intellectual property rights of any person or entity.
<br /> 10.2 By Customer. Customer agrees to defend, hold harmless, and indemnify FirstTwo, and its Affiliates, officers,
<br /> directors, employees, suppliers, consultants, and agents ("Indemnified Parties"), from any and all claims, liability, damages,
<br /> and costs (including but not limited to reasonable attorneys' fees, witness fees and court costs incurred and/or those
<br /> necessary to successfully establish the right to indemnification) that are threatened, asserted, filed, assessed or imposed
<br /> against FirstTwo and/or any Indemnified Party(collectively"Claims"), to the extent that such Claims arise out of or relate to (i)
<br /> any breach or alleged breach of any warranty, representation, or covenant made by Customer in this Agreement, including
<br /> without limitation arising from any actual or alleged infringement or violation of any patent, copyright, trademark, trade secret
<br /> or other proprietary right of a third party; (ii) Customer's failure to comply with any other provision of this Agreement or any
<br /> violation by Customer of any law;and (iii) bodily injury or death or damage to property suffered or caused by Customer or any
<br /> of its employees or contractors caused by Customer.
<br /> 10.3 Procedure. A Party's obligations under Sections 10.1 or 10.2 are conditioned upon the indemnified Party's (a) giving
<br /> the indemnifying Party prompt written notice of such claim; (b) giving the indemnifying Party the right to control the defense
<br /> and settlement of such claim; and (c) providing reasonable assistance, at the indemnifying Party's sole cost, as the
<br /> indemnifying Party may request in the defense of any such claim.
<br /> 11. EXCLUSIVE REMEDY
<br /> Except as expressly provided in an Order or this Agreement, Customer's sole and exclusive remedy for FirstTwo's failure to
<br /> provide Software or Support Services as provided herein shall be, at FirstTwo's option, repair, replacement (or re-
<br /> performance),or refund of the applicable Fees paid by Customer.
<br /> 12. LIMITATION OF LIABILITY
<br /> EXCEPT AS EXPRESSLY PROVIDED BELOW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING
<br /> OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES
<br /> PAID FOR LICENSES DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE
<br /> LIABILITY. IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY
<br /> FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR
<br /> FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND,
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