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NOT ESRI OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE
<br />LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
<br />REMEDY.
<br />8.2 General Limitation of Liability — EXCEPT AS PROVIDED IN ARTICLE 9— INFRINGEMENT INDEMNITY, IN
<br />NO EVENT WILL ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF
<br />ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
<br />LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNTS PAID
<br />TO ESRI BY LICENSEE FOR SOFTWARE, DATA, OR DOCUMENTATION PURSUANT TO THIS LICENSE
<br />AGREEMENT.
<br />8.3 Applicability of Disclaimers and Limitations — Licensee agrees that the limitations of liability and disclaimers set forth
<br />in this License Agreement will apply regardless of whether Licensee has accepted the Software, Data, or Documentation or
<br />any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this License
<br />Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between
<br />the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that
<br />the same form an essential basis of the bargain between the parties.
<br />ARTICLE 9— INFRINGEMENT INDEMNITY
<br />9.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense,
<br />including reasonable attomeys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third
<br />party alleging that the Software, Data, or Documentation infringes a U.S. patent, copyright, or trademark provided
<br />(a) Licensee promptly notifies ESRI in writing of the claim thereof;
<br />(b) ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any
<br />claim; and
<br />(c) Licensee cooperates fully in the defense of the claim.
<br />9.2 If ESRI believes that the Software, Data, or Documentation is or will become the subject of an infringement claim, or in
<br />the event that use of the Software, Data, or Documentation is enjoined, ESRI, at its own expense, may either (i) obtain the
<br />right for Licensee to continue using the Software, Data, or Documentation or (ii) modify the Software, Data, or
<br />Documentation to make it noninfringing while maintaining substantially similar software functionality or data/informational
<br />content. If neither of such alternatives is commercially reasonable, the infringing items shall be returned to ESRI and ESRI's
<br />sole liability shall be to refund license fees paid by Licensee prorated on a five (5) year, straight line depreciation basis
<br />beginning from the initial date of delivery.
<br />9.3 ESRI shall have no obligation hereunder to defend Licensee or to pay any resulting costs, damages, or reasonable
<br />attorneys' fees for or with respect to any claims, actions, or demands alleging (i) infringement that arises by reason of
<br />combination of noninfringing items, however acquired, with any items not supplied by ESRI; (ii) infringement to the extent
<br />arising from material alteration of the Software, Data, or Documentation by anyone other than ESRI, its agents, or its
<br />contractors; (iii) the direct or contributory infringement of any process patent by Licensee through the use of the Software,
<br />Data, or Documentation other than a process patent that is necessarily infringed by the internal processes executed within the
<br />Software or Data itself when the Software or Data is executed for its intended purpose; (iv) continued allegedly infringing
<br />activity by Licensee after it has been notified of the possible infringement; or (v) continued allegedly infringing activity by
<br />Licensee to the extent it arises from failure of Licensee to use the updated or modified Software, Data, or Documentation
<br />provided by ESRI for avoiding infringement.
<br />THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI WITH RESPECT TO INFRINGEMENT OR
<br />ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
<br />ARTICLE 10-- GENERAL PROVISIONS
<br />10.1 Export Control Regulations — Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, or
<br />provide the Software, Data, or Documentation, in whole or in part, to (i) any country to which the United States has
<br />embargoed goods; (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person
<br />or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export,
<br />reexport, or provision violates any U.S. export control law or regulation. Licensee shall not export the Software, Data, and /or
<br />Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and
<br />regulations. Licensee represents and warrants that it or its employees, consultants, or customers who gain access to the
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