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<br />X. <br /> <br />XI. <br /> <br />XII. <br /> <br />Service Agreement <br /> <br />replace, at the Service Provider's sole expense, such item with a substantially equivalent <br />non-infringing item or modify such item so that it becomes non-infringing. <br /> <br />Confidentiality. The Service Provider shall not disclose or remarket to any person, firm <br />or entity any Confidential Information without the Customer's express, prior written <br />permission; provided, however, that notwithstanding the foregoing, the Service Provider <br />may disclose Confidential Information to the extent that, on the advice of Service <br />Providers' counsel, it is required to be disclosed pursuant to a statutory or regulatory <br />provision or court order. "Confidential Information" means all documents, reports, data, <br />records, forms and other materials obtained by the Service Provider from the Customer in <br />the course of performing any Services (including, but not limited to, the Customer records <br />and information): (i) that have been marked as confidential; (ii) whose confidential nature <br />has been made known by the Customer to the Service Provider; or (iii) that due to their <br />character and nature, a reasonable person under like circumstances would treat as <br />confidential. Notwithstanding the foregoing, Confidential Information does not include <br />information which: (i) is already known to the Service Provider at the time of disclosure <br />by the Customer; (ii) is or becomes publicly known through no wrongful act of the <br />Service Provider; (iii) is independently developed by the Service Provider without benefit <br />of the Customer's Confidential Information; or (iv) is received by the Service Provider <br />from a third party without restriction and without a breach of an obligation of <br />confidentiality. <br /> <br />Liability Limit. THE SERVICE PROVIDER'S TOTAL LIABILITY TO THE <br />CUSTOMER SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT <br />TO EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER FOR THE <br />SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE LOSS. <br />THE FOREGOING REMEDY IS THE CUSTOMER'S SOLE AND EXCLUSIVE <br />REMEDY. THE SERVICE PROVIDER SHALL NOT BE LIABLE TO THE <br />CUSTOMER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL <br />DAMAGES EVEN IF THE SERVICE PROVIDER HAS KNOWLEDGE OF THE <br />POSSffiILITY OF SUCH LOSS OR DAMAGE. THE SERVICE PROVIDER WILL <br />NOT BE RESPONSffiLE FOR FAILURE TO PROVIDE SOFTWARE OR SERVICES <br />IF DUE TO ANY CAUSE OR CONDITION BEYOND THE SERVICE PROVIDER'S <br />CONTROL. <br /> <br />Force Majeure. The Service Provider shall not bear any liability or responsibility <br />whatsoever to any other party for any failure to perform or delay caused by fire, <br />earthquake, explosion, flood, hurricane, tornadoes, the elements, acts of God or the public <br />enemy, restrictions, limitations or interference of governmental authorities or agents, war, <br />invasion, insurrection, rebellion, riots, strikes or lockouts, inability to obtain necessary <br />materials, goods, services, utilities or labor, or any other cause whether similar or <br /> <br />Page 4 of 8 <br /> <br />VCF (Ver.7.0) <br />APOO I ,OOOAP, 12020HOU ISVIU.E <br />