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not generally known to the public, whether of a technical, <br />business or other nature (including, but not necessarily limited <br />to: trade secrets, know how, computer program source codes, <br />and information relating to the customers, business plans, <br />promotional and marketing activities, finances and other <br />business affairs of such party); provided that same is <br />conspicuously marked or otherwise identified as confidential <br />or proprietary information prior to, upon or promptly after <br />receipt by the other party; and provided further that the any <br />software or software application server source code provided <br />by Active or its licensors shall be deemed to constitute <br />Confidential Information without further designation by <br />Active. The Receiving Parry will treat such Confidential <br />Information as confidential and proprietary of the Disclosing <br />Party and will use such Confidential Information solely for the <br />purposes for which it is provided by the Disclosing Party and <br />will not disclose such Confidential Information to any third <br />party (other than a third party under contract whereby that <br />third party has agreed in writing to keep the Confidential <br />Information confidential). <br />(b) Exclusions. The obligations under this paragraph will <br />not apply to any: (i) use or disclosure of any information <br />pursuant to the exercise of the Receiving Party's rights under <br />this Agreement; (ii) information that is now or later becomes <br />publicly available through no fault of the Receiving Party; (iii) <br />information that is obtained by the Receiving Party from a <br />third party authorized to make such disclosure (other than in <br />connection with` this Agreement) without any obligation of <br />secrecy or confidentiality; (iv) information that is <br />independently developed by the Receiving Party (e.g., without <br />reference to any Confidential Information); (v) any disclosure <br />required by applicable law (e.g., pursuant to applicable <br />securities laws or legal process), provided that the Receiving <br />Party will use reasonable efforts to give advance notice to and <br />cooperate with the Disclosing Party in connection with any <br />such disclosure; and (vi) any disclosure with the consent of the <br />Disclosing Party. <br />4. EXCLUSION OF WARRANTIES AND <br />LIMITATION OF LIABILITY <br />4.1 SPECIFIC EXCLUSION OF OTHER <br />WARRANTIES. THE EXPRESS WARRANTIES SET OUT <br />IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER <br />WARRANTIES, AND THERE ARE NO OTHER <br />WARRANTIES, REPRESENTATIONS, CONDITIONS, OR <br />GUARANTEES OF ANY KIND WHATSOEVER <br />APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW <br />(IN CONTRACT OR TORT OR OTHERWISE) OR <br />CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE <br />REGARDING MERCHANTABILITY, FITNESS FOR <br />PURPOSE, DURABILITY, CORRESPONDENCE TO <br />SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. <br />WITHOUT LIMITING THE ABOVE, ACTIVE DOES NOT <br />WARRANT THAT ANY PRODUCTS OR SERVICES <br />PROVIDED HEREUNDER WILL MEET THE <br />REQUIREMENTS OF CLIENT OR THAT THE <br />OPERATION OF PRODUCTS AND SERVICES <br />Last revised October 4, 2013 <br />PROVIDED HEREUNDER WILL BE FREE FROM <br />INTERRUPTION OR ERRORS. <br />4.2 RESTRICTIONS ON WARRANTY. ACTIVE HAS <br />NO OBLIGATION TO REPAIR OR REPLACE PRODUCTS <br />DAMAGED BY EXTERNAL CAUSE OR THROUGH THE <br />FAULT OR NEGLIGENCE OF ANY PARTY OTHER <br />THAN ACTIVE. <br />4.3 NO INDIRECT DAMAGES. WITHOUT LIMITING <br />THE GENERALITY OF SECTIONS 4.1 AND 4.4, IN NO <br />EVENT WILL ACTIVE BE LIABLE TO CLIENT OR TO <br />ANY OTHER PARTY FOR INDIRECT DAMAGES OR <br />LOSSES (IN CONTRACT OR TORT OR OTHERWISE), <br />INCLUDING BUT NOT LIMITED TO DAMAGES FOR <br />LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF <br />USE OF INFORMATION OR SERVICES, OR <br />INCIDENTAL, CONSEQUENTIAL, OR SPECIAL <br />DAMAGES. <br />4.4 LIMITS ON LIABILITY. IF, FOR ANY REASON, <br />ACTIVE BECOMES LIABLE TO CLIENT OR ANY <br />OTHER PARTY FOR DIRECT OR ANY OTHER <br />DAMAGES FOR ANY CAUSE WHATSOEVER, AND <br />REGARDLESS OF THE FORM OF ACTION (IN <br />CONTRACT OR TORT OR OTHERWISE), THEN: <br />(a) THE TOTAL AGGREGATE LIABILITY OF ACTIVE <br />TO CLIENT AND ALL OTHER PARTIES IN <br />CONNECTION WITH THIS AGREEMENT WILL BE <br />LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID <br />BY CLIENT TO ACTIVE AS CONSIDERATION FOR THE <br />PRODUCTS AND SERVICES GIVING RISE TO SUCH <br />CLAIM DURING THE TWELVE (12) MONTH PERIOD <br />PRECEDING THE DATE ON WHICH THE CAUSE OF <br />ACTION AROSE; AND <br />(b) IN ANY CASE CLIENT MAY NOT BRING OR <br />INITIATE ANY ACTION OR PROCEEDING AGAINST <br />ACTIVE ARISING OUT OF THIS AGREEMENT OR <br />RELATING TO ANY PRODUCTS OR SERVICES <br />PROVIDED HEREUNDER MORE THAN TWO YEARS <br />AFTER THE RELEVANT CAUSE OF ACTION HAS <br />ARISEN. <br />4.5 SEPARATE ENFORCEABILITY. SECTIONS 4.1 <br />THROUGH 4.4 ARE TO BE CONSTRUED AS SEPARATE <br />PROVISIONS AND WILL EACH BE INDIVIDUALLY <br />ENFORCEABLE. <br />4.6 For the purposes of this Section 4, reference to Active <br />shall also include its suppliers and licensors. <br />5. RESTRICTIONS <br />5.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The <br />Products are provided with restricted rights. Use, duplication, <br />or disclosure by the U.S. Government is subject to restrictions <br />as set forth in subparagraph (c) of The Rights in Technical <br />Data and Computer Software clause at DFARS 252.227 -7013, <br />or subparagraphs (b)(I) and (2) of the Commercial Computer <br />Software - Restricted Rights at 48 CFR 52.227 -19, as <br />