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<br /> <br />Rev. 06022016 5 of 10 <br /> <br />PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF <br />COVER OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR <br />PUNITUIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT <br />OF THE FURNISHING, PERFORMANCE OR USE OF THE EQUIVANT SOFTWARE <br />OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH <br />OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF <br />EQUIVANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN <br />ADDITION, EQUIVANT WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY <br />DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. <br />EQUIVANT’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, <br />IN ANY EVENT, EXCEED THE LICENSE FEE PAID BY CUSTOMER TO EQUIVANT <br />UNDER THIS AGREEMENT. <br /> <br />THE PROVISIONS OF THIS ARTICLE VII ALLOCATE RISKS UNDER THIS <br />AGREEMENT BETWEEN CUSTOMER AND EQUIVANT. EQUIVANT’S PRICING <br />REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. <br /> <br />NO ACTION ARISING OUT OF ANY BREACH OR CLAIMED BREACH OF THIS <br />AGREEMENT OR TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT <br />MAY BE BROUGHT BY EITHER PARTY MORE THAN SIX (6) MONTHS AFTER <br />THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS <br />AGREEMENT, A CAUSE OF ACTION WILL BE DEEMED TO HAVE ACCRUED <br />WHEN A PARTY KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE <br />BREACH OR CLAIMED BREACH. <br /> <br />NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF HAS <br />AUTHORITY TO BIND EQUIVANT TO ANY ORAL REPRESENTATIONS OR <br />WARRANTY CONCERNING THE SOFTWARE. ANY WRITTEN <br />REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS <br />AGREEMENT WILL NOT BE ENFORCEABLE. <br /> <br />8. INDEMNIFICATION FOR INFRINGEMENT <br /> <br />a. , at its own expense, shall defend or settle any claim, action or allegation brought <br />against CUSTOMER that the Software infringes any copyright, trade secret or <br />other similar proprietary right of any third party and shall pay any final judgments awar ded <br />or settlements entered into, provided that CUSTOMER gives prompt written notice to <br /> of any such claim, action or allegation of infringement and gives the <br />authority to proceed as contemplated herein . will have the exclusive right to <br />defend any such claim, action, or allegation and make settlements thereof at its own <br />discretion, and CUSTOMER may not settle or compromise such claim, action or allegation, <br />except with prior written consent of . CUSTOMER shall give such assistance and <br />information as may reasonably require to settle or oppose such claims . In the <br />event any such infringement, claim, action, or allegation is brought or threatened, <br />may, at its sole option and expense: <br /> <br />1. Procure for CUSTOMER the right to continue Use of the Software or <br />infringing part thereof, or <br /> <br />2. Modify or amend the Software or infringing part thereof or replace the <br /> Software or infringing part thereof with other software having substantially <br />the same or better capabilities; or, if neither of the foregoing is commercially <br />practicable,