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BADGER METER
<br />Badger Meter BEACON AMA MANAGED SOLUTION
<br />MASTER AGREEMENT
<br />WARRANTIES OF MERCHANTABILITY, TITLE, NON -INFRINGEMENT, FITNESS FOR A
<br />PARTICULAR PURPOSE, QUIET ENJOYMENT, OR IMPLIED WARRANTIES ARISING
<br />FROM A COURSE OF DEALING, INDUSTRY PRACTICE OR USAGE OF TRADE.
<br />BADGER METER EXPRESSLY DISCLAIMS THAT THE PORTAL AND SERVICE WILL BE
<br />UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND
<br />EXPRESSLY DISCLAIMS ANY WARRANTIES AS TO THE RELIABILITY, QUALITY,
<br />SECURITY, CONDITION, DESIGN, SUITABILITY, INTER -OPERABILITY,
<br />AVAILABILITY, COMPLETENESS OF THE PORTAL OR SERVICE OR THAT ANY
<br />CONTENT, INCLUDING THE CUSTOMER CONTENT, WILL BE SECURE OR NOT
<br />OTHERWISE LOST OR DAMAGED.
<br />(e) ESSENTIAL TERMS. THE ENFORCEABILITY OF THIS SECTION (11) IS ESSENTIAL
<br />TO BADGER METER'S WILLINGNESS TO ENTER INTO THIS AGREEMENT WITH
<br />CUSTOMER.
<br />(12) LIMITATION OF LIABILITY. IF ANY PARTY DEFAULTS IN ITS OBLIGATIONS UNDER
<br />THIS AGREEMENT AND SUBJECT TO THE LIABILITY CAP SET FORTH IN SECTION (13):
<br />(a) DIRECT DAMAGES. THE NON -BREACHING PARTY WILL BE ENTITLED TO
<br />RECOVER FROM THE BREACHING PARTY ONLY THE ACTUAL AND DIRECT
<br />DAMAGES THAT THE NON -BREACHING PARTY MAY INCUR AS A RESULT OF SUCH
<br />BREACH. CUSTOMER'S ACTUAL AND DIRECT DAMAGES WILL BE LIMITED TO THE
<br />RECOVERY OF FEES ACTUALLY PAID TO BADGER METER BY CUSTOMER FOR THE
<br />PREVIOUS THREE MONTH PERIOD.
<br />(b) LIMITS ON DAMAGES. EXCEPT FOR PAYMENT OBLIGATIONS (i) ARISING
<br />UNDER SECTIONS (14) AND (15) (INDEMNIFICATION), (ii) DAMAGES FOR GROSS
<br />NEGLIGENCE, OR WILLFUL MISCONDUCT OR CLAIMS FOR VIOLATION OF THE
<br />OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY NOR ANY OF
<br />ITS RESPECTIVE AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE TO THE
<br />OTHER PARTY, AN AUTHORIZED USER, AUTHORIZED CONSUMER OR ANY THIRD
<br />PARTY FOR ANY CLAIMS, DEMANDS, ACTIONS, LOSSES, DAMAGES, FINES,
<br />JUDGMENTS SETTLEMENTS, COSTS, EXPENSES, ATTORNEY'S FEES, AND COURT
<br />COSTS OR ANY OTHER LIABILITIES OF ANY NATURE WHATSOEVER, INCLUDING
<br />BUT NOT LIMITED TO THE PORTAL, SERVICE, DOCUMENTATION OR THE SUBJECT
<br />MATTER OF THIS AGREEMENT ("CLAIM").
<br />(c) NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL BADGER METER BE
<br />LIABLE TO CUSTOMER, AN AUTHORIZED USER, AN AUTHORIZED CONSUMER OR
<br />ANY THIRD PARTY FOR (A) ANY SPECIAL, INDIRECT, INCIDENTAL,
<br />CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE
<br />POSSIBILITY THEREOF; (B) ANY CLAIMS RESULTING FROM LOSS OF DATA,
<br />CUSTOMER CONTENT, CUSTOMER DATA, BREACH OF CONFIDENTIALITY, LOST
<br />©2015 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 7 of 32
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