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If such claim has occurred or in Questica's opinion is likely to occur, Licensee agrees to permit Questica <br />at its option and expense, either to procure for Licensee the right to continue using the Work or to <br />replace or modify the same so that it becomes non -infringing without loss of functionality. <br />Questica shall have no obligation to defend Licensee or to pay costs, damages or legal fees for any <br />claim based upon use of other than a current unaltered release of the Work, if such infringement <br />would have been avoided by the use of a current unaltered release thereof. <br />The foregoing states the entire obligations of Questica with respect to infringement or proprietary or <br />intellectual rights of third parties. <br />4. LIMITED WARRANTY. Questica warrants that so long as Product Maintenance and Support services <br />are provided by Questica, that the Software, when properly installed, will perform substantially in <br />accordance with the accompanying written materials. If the Software does not so perform during such <br />period, Questica will correct, at no cost to Licensee, programming errors in the Software to make the <br />Software so perform provided that i) the Software has been properly used by the Licensee in <br />accordance with the documentation furnished by Questica to Licensee in connection therewith; ii) <br />Licensee notifies Questica of the programming errors and describes the nature of the suspected errors <br />and of the circumstances in which they occur; iii) Questica, using reasonable efforts, is able to confirm <br />the existence of the programming errors; and iv) Licensee or any third party has not changed or <br />modified the Software. <br />Licensee agrees that Questica shall not be liable to the Licensee or any other person, regardless of the <br />cause, for the effectiveness or accuracy of the Software, the Documentation or any other related <br />materials, or for any other special, indirect, incidental or consequential damages arising from or <br />occasioned by the use of the Software, the Documentation or the related materials, or the failure or <br />omission on the part of Questica to comply with its obligations under this Agreement. <br />The Licensee hereby agrees that Questica's maximum liability for any claim arising in connection with <br />the Software, the Documentation or any related materials (whether in contract, tort, including <br />negligence, product liability or otherwise) shall not exceed the total Maintenance and Support fees <br />paid by the Licensee. <br />THE ABOVE EXPRESS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS (EXPRESS <br />AND IMPLIED) AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF <br />DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF <br />MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OTHER WARRANTIES OR <br />CONDITIONS EXPRESS OR IMPLIED ARE GIVEN. <br />S. LIMITATIONS OF REMEDIES AND DAMAGES. Subject to Section 10 hereof, Questica's entire liability <br />and the Licensee's exclusive remedy under this agreement shall be i) if Questica is in breach of the <br />Limited Warranty, to require Questica to replace any defective media or to correct any defects and <br />make any modifications which are necessary to cause the Software to confirm in all material respects <br />to the Documentation; or ii) the termination of this agreement. <br />In the event of any such termination, Questica shall not be liable in the aggregate for any damages <br />which exceed the amount paid hereunder by the Licensee to Questica as Maintenance and Support <br />Fees. In no event, shall Questica be liable for indirect, special, incidental, or consequential damages, <br />even if advised of the possibility of such damages. <br />3 1 P a g e <br />