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$5,000. These limitations apply regardless of whether the liability is based on breach of
<br /> contract, tort (including negligence), strict liability, breach of warranties, or any other legal
<br /> theory, However, these monetary limitations will not apply to:
<br /> (1) Microsoft's and Customer's obligations under the section titled "Defense of Infringement,
<br /> misappropriation, and third party claims";
<br /> (€i) liability for damages caused by either party's gross negligence or willful misconduct, or
<br /> that of Its employees or its agents, and awarded by a court of final adjudication(provided
<br /> that, in jurisdictions that do not recognize a legal distinction between "gross negligence"
<br /> and "negligence," "gross negligence" as used In this subsection shall mean
<br /> "recklessness");
<br /> (ill) liabilities arising out of any breach by either party of its obligations under the section
<br /> entitled "Confidentiality", except that Microsoft's liability arising out of or In relation to
<br /> Customer Data shall in all cases be limited to the amount Customer paid for the Online
<br /> Service giving rise to that liability during the prior 12 months;
<br /> (iv)liability for personal Injury or death caused by either party's negligence, or that of its
<br /> employees or agents,or for fraudulent misrepresentation; and
<br /> (v) violation by either party of the other party's intellectual properly rights.
<br /> b. EXCLUSION OF CERTAIN DAMAGES, TO THE EXTENT PERMITTED BY APPLICABLE
<br /> LAW,WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY,NOR ANY OF
<br /> ITS AFFILIATES, OR CONTRACTORS, WILL BE LIABLE::.FOR ANY INDIRECT,
<br /> CONSEQUENTIAL., SPECIAL, OR INCIDENTAL DAMAGES, OR'DAMAGES FOR LOST
<br /> PROFITS, REVENUES, BUSINESS ,INTERRUPTION, OR. LOSS. OF BUSINESS
<br /> INFORMATION ARISING IN CONNECTION WITH THIS AGREEMENT., EVEN IF,ADVISED
<br /> OF THE POSSIBILITY OF SUCH DAMAGES OR' IF SUCH .POSSIBILITY WAS
<br /> REASONABLY FORESEEABLE. HOWEVER, THIS.EXCLUSION DOES NOT APPLY TO
<br /> DITHER PARTY'S LIABILITY TO THE OTHER FOR VIOLATION OF ITS
<br /> CONFIDENTIALITY OBLIGATIONS(EXCEPT TO.THE EXTENT THAT SUCH VIOLATION
<br /> RELATES TO CUSTOMER DATA), THE .OTHER PARTY'S.INTELLECTUAL PROPERTY
<br /> RIGHTS, OR THE PARTIES' RESPECTIVE. OBLIGATIONS IN THE SECTION TITLED
<br /> "DEFENSE OF INFRINGEMENT,MISAPPROPRIATION,AND THIRD PARTY CLAIMS."
<br /> c. Affiliates and Contractors. (Neither Microsoft nor Customer shall bring any action against
<br /> the other's Affiliates or Contractors in respect of any matter disclaimed on their behalf in this
<br /> agreement. Each party will indemnify the other in the event of any breach of this provision.
<br /> 16. Verifying Compliance.
<br /> a. Right to verify compliance. Customer must keep records relating to the Products it and its
<br /> Affiliates use or distribute. Microsoft has the right, to the extent permitted by applicable law,
<br /> to verify compliance with the license terms for the Products,at Microsoft's expense.
<br /> b. Verification process and limitations. Microsoft will provide customer at least 30 days'
<br /> notice of its intent to verify compliance. Microsoft will engage an independent auditor, which
<br /> will be subject to a confidentiality obligation. Verification will take place during normal
<br /> business hours and in a manner that does not interfere unreasonably with Customer's
<br /> operations. Customer must promptly provide the Independent auditor with any information it
<br /> reasonably requests in furtherance of the verification, including access to systems running
<br /> the Products and evidence of licenses for Products Customer hosts, sublicenses, or
<br /> distributes to third parties, As an alternative, Microsoft may require Customer to complete
<br /> Microsoft's self-audit process relating to the Products Customer and any of its Affiliates use
<br /> or distribute, .Such information will be used solely for purposes of determining compliance.
<br /> c. Remedies for non-compliance. if verification or self-audit reveals any unlicensed use,
<br /> Customer must within 30 days order sufficient licenses to cover its use. If there is no
<br /> SeleotPlus20l2AgrGov(US)SLO(rNG)(Oct2Ol2) Page 13 of 16
<br /> Document X20-04874
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