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non -Microsoft software hosted in an Online. Service by Microsoft on Enrolled Affiliate's behalf <br />misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other <br />proprietary right of a third pally; or (2) Enrolled Affiliate's use of any f rociuct or Fix, alone or in <br />combination with anything else, `violates the law or damages a third party. <br />12. Limitation of liability. ' <br />For each Product. each patty's maximum, aggregate liability to the other under this Agreement is limited <br />to dirert damages finally awarded in an amount not to exceed the amounts Enrolled Affiliate was required <br />to pay for the applicable Products during the Iterm of this Agreement, subject to the following: <br />a. Online Services. For Online Services, Microsoft's maximum liability to Enrolled Affilate for <br />any incident giving rise to a claim will not exceed the amount Enrolled Affiliate paid for the <br />Online Service during the 12 months before the incident, <br />b. Free Products and Dlsfributatite Code. For Products provided free of charge and code <br />that Enrolled Affiliate is authorized to redistribute to third parties without separate payment to <br />Microsoft, Microsoft's liability is limited to direct damages finally nwarded up to USS5,000, <br />c. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, o!' <br />ronsecluentiaf damages, or for loss of use, loss of business information, loss of revenue, or <br />interruption of business, howevdr caused or on any theory of liability. <br />d. Exceptions. No limitation or exclusions will apply to liability arising out of either parh%s (1) <br />confidentiality obligations (except for all liability related to Customer Data, which will remain <br />subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the <br />other patty's intellectual property rights. <br />r <br />13. Verifying compliance. <br />a. flight to verify compliance. Enrolled Affiliate must keep records relating to all use and <br />distribution of Products by Enrolled Affiliate and its Affiliates. Microsoft has the right, at its <br />expense, to the extent permitted by applicable law. to verify compliance with the Product's <br />license terms. Enrolfed Affiliate must promptly provide the independent auditor with any <br />information the auditor reasonably requests in furtherance of the verification, including access <br />to systems running the Products and evidence of Licenses for Products Enrolled Affiliate hosts, <br />sublicenses, or distributes to third parties. Enrolled Affiliate agrees to complete Microsoft's <br />self-atrclit process, which Microsoft may require as an alternative to a third party audit <br />b. Rernedles for non-compliance. If verification or self -audit reveals any unlicensed use or <br />distribution, then within 30 days, (1) Enrolled Affiliate must order sufficient Licenses to cover <br />that use or distribution, and (2) if unlicensed use or distribution is 51111 or more, Enrolled Affiliate <br />most reimburse Microsoft for the cost Microsoft has incurred in verification and acquire the <br />necessary additional licenses at '125% of the price based on the then -current price list and <br />Enrolled Affiliate price level, the unlicensed use percentage is based on the total number of <br />licenses purchased compared td actual Install base. If there is no unlicensed use, Microsoft will <br />not subject Enrolled Affiliate tolanother verification for at least one year_ By exercising the <br />rights and procedures described above, Microsoft does not waive its rights to enforce this <br />Agreement or to protect its intellectual property by any other means permitted by law. <br />c. Verification process. Microsoft will notily Enrolled Affiliate at least 30 days in advance of its <br />intent to verify Enrolled Affiliate's compliance with the license terns for the Products Enrolled <br />Affiliate and its Affiliates use or distribute. Microsoft will engage an independent auditor, which <br />will be subject to a confidentiality obligation. Any information collected in the self -audit will be <br />used solely for purposes of determining compliance. This verification will take place during <br />normal business hours and in a manner that does not interfere unreasonably with Enrolled <br />Affiliate's operations. <br />i1�1111fiF�yr(l!ti)SLCi(ENCijtTlUv'L[]1ti) PAU-1 9 CAI I I <br />D cwi iienl X7 D.1 D2 rig <br />