WARRANTY WITH RESPECT TO THE PERFORMANCE OR RESULTS OBTAINED USING THE BINARY
SOFTWARE [******************], OR THAT THE BINARY SOFTWARE [******************]
WILL BE ERROR FREE OR CORRECTED IN THE EVENT OF DISCOVERY OF ANY ERRORS.
1.11.5.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER OR
ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE
OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWSOEVER
FRAMED (IN CONTRACT OR IN TORT) AND WHETHER OR NOT FORESEEABLE, AND EVEN IF
ADVISED OF THE
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POSSIBILITY OF SUCH DAMAGES.
WITH THE EXCEPTION OF DAMAGES EXPRESSLY INDEMNIFIED UNDER SECTION 1.12 OR
ARISING FROM BREACH OF SECTIONS 1.2, 1.6 OR 1.7, NEITHER PARTY'S MAXIMUM
AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE TOTAL FEES PAID BY LICENSEE
HEREUNDER.
THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR
DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH
OF THIS AGREEMENT.
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1.12.
INDEMNITIES
1.12.1.
LICENSOR WILL INDEMNIFY, DEFEND AND HOLD LICENSEE HARMLESS
AGAINST ANY AND ALL CLAIMS, DAMAGES AND EXPENSES (INCLUDING REASONABLE LEGAL
FEES) THAT USE OF THE BINARY SOFTWARE IN ACCORDANCE WITH THIS AGREEMENT
INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
1.12.2.
LICENSOR'S OBLIGATIONS HEREUNDER ARE EXPRESSLY CONDITIONED
UPON ALL OF THE FOLLOWING: (A) PROMPT WRITTEN NOTICE TO LICENSOR OF ANY SUCH
CLAIM OF INFRINGEMENT OF WHICH LICENSEE HAS ACTUAL KNOWLEDGE; (B) LICENSOR IS
GIVEN AND HAS FULL AND COMPLETE CONTROL OVER THE DEFENSE AND SETTLEMENT OF SUCH
CLAIM, PROVIDED THAT ANY SUCH DEFENSE OR SETTLEMENT IN NO WAY DEROGATES FROM
LICENSEE'S RIGHTS UNDER THIS AGREEMENT; AND, (C) LICENSEE PROVIDES TO LICENSOR
REASONABLE ASSISTANCE IN THE DEFENSE OF SUCH CLAIM
1.12.3.
IF SUCH CLAIM HAS OCCURRED OR, IN LICENSOR'S OPINION IS
LIKELY TO OCCUR, LICENSEE AGREES TO PERMIT LICENSOR, AT LICENSOR'S OPTION AND
EXPENSE, EITHER TO PROCURE FOR IT THE RIGHT TO CONTINUE USING THE BINARY
SOFTWARE OR TO REPLACE OR TO MODIFY SAME SO THAT IT BECOMES NON-INFRINGING,
PROVIDED THAT ANY SUCH REPLACEMENT OR MODIFICATION IS SUBSTANTIALLY EQUIVALENT.
IF NEITHER OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE: (A) LICENSEE
AGREES, UPON WRITTEN NOTICE FROM LICENSOR, TO RETURN OR TO DESTROY THE ORIGINAL
AND ALL COPIES OF THE BINARY SOFTWARE; AND (B) LICENSOR AGREES TO REIMBURSE
LICENSEE ON THE FOLLOWING BASIS:
(I) LICENSOR, ACTING REASONABLY, WILL
DETERMINE THE EXPECTED USAGE LIFE OF THE BINARY SOFTWARE; (II) LICENSOR SHALL
THEN DIVIDE THE ACTUAL TIME LICENSEE HAS HAD UNINTERRUPTED USAGE OF THE BINARY
SOFTWARE BY THE EXPECTED USAGE LIFE AND SHALL MULTIPLY THIS RATIO AGAINST THOSE
FEES AND CHARGES PAID BY LICENSEE TO LICENSOR IN CONNECTION WITH SUCH AFFECTED
SOFTWARE (COLLECTIVELY, THE "SOFTWARE CHARGES"); AND (III) THE AMOUNT SO
DETERMINED SHALL BE DEDUCTED FROM SUCH SOFTWARE CHARGES AND THE RESULT SHALL BE
THE REIMBURSEMENT TO BE PAID BY LICENSOR TO LICENSEE PURSUANT TO THIS SECTION.
1.12.4.
LICENSOR SHALL HAVE NO OBLIGATION TO DEFEND LICENSEE