the foregoing.
Notwithstanding the
foregoing sentence, failure of Yahoo! to give Publisher notice of a claim will
not affect Publisher's indemnification obligations except to the extent that
Publisher is materially and adversely prejudiced by such failure.
Publisher
will not enter into any settlement or compromise of any such claim without
Yahoo!'s prior consent, which will not be unreasonably withheld.
(p)
DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, (A) YAHOO!
AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY
CONTENT PROVIDED HEREUNDER OR FOR ANY WEBSITES THAT CAN BE LINKED TO OR FROM THE
RESULTS, (B) PUBLISHER ACKNOWLEDGES THAT THE PAID MARKETPLACES ARE CONTINUOUSLY
CHANGING AND THAT YAHOO! RESERVES THE RIGHT TO UPDATE SUCH MARKETPLACES,
PRODUCTS AND SERVICES, AND (C) YAHOO! AND ITS LICENSORS MAKE NO WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
USE, AND NONINFRINGEMENT.
(q)
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER
CLAIM OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY
CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY'S AGGREGATE
LIABILITY FOR DIRECT DAMAGES AND PAYMENT OF ANY INDEMNITY OBLIGATION UNDER THIS
AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE GREATER OF (a) AMOUNTS PAID TO
PUBLISHER DURING THE 12 MONTHS PRIOR TO THE TIME THAT THE CLAIM AROSE; OR (b)
[CONFIDENTIAL TREATMENT REQUESTED] US.
NOTWITHSTANDING THE FOREGOING, THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY
WILL NOT APPLY TO: (i) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; and
(ii) AN INTENTIONAL BREACH BY PUBLISHER OF ITS EXCLUSIVITY OBLIGATIONS.
(r)
Abuse of Services.
Unless specifically allowed in this Agreement,
none of the following will occur on or in connection with Publisher's Offerings:
1.
Queries or clicks generated by any automated or fraudulent means;
2.
Queries or clicks on Results generated by misleading, manipulative,
deceptive or incented means, including but not limited to: (i) blind links
(where users do not know that they will be performing a Query or clicking on a
Result); (ii) requiring a user to search or click to receive some other benefit,
obtain some other result or perform another function (such as leaving a webpage
or closing a window); (iii) pre-populating the Search Box; (iv) Publisher, its
employees, contractors or agents clicking on the Results except in the course of
normal individual use; or (v) offering a user any inducement of any kind to
search or click on the Results;
3.
Unauthorized implementations, including: (i) use, display, syndication,
sublicensing or delivery of the Links, Results or Marks anywhere other than on
Publisher's Offerings or in a manner that has