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at Cherwell's cost, the relevant portion of the Licensed Software with a substitute product that functions substantially in accordance with the applicable specifications for that portion of the Licensed Software; or (iii) at Cherwell's cost, modify the Licensed Software so that it does not Infringe or misappropriate, provided thatthe Licensed Software, as modified, continues to perform substantially in accordance with the applicable specifications. 2.2 Cherwell's indemnification obligation pursuant to the above shall not apply to the extent any infringement claim is found to be caused by (i) Customer's use of the Licensed Software in a manner that is not provided for under this Agreement or Cherwell's user documentation; or (ii) Customer's use, operation or combination of all or any component or portion of the Licensed Software with all or any portion of other software, equipment or systems not provided or required by Cherwell. As a condition precedent to any liability of Cherwell, If Customer receives notice of any infringement claims for which indemnification may be available under the above, Customer must promptly notify Cherwell in writing of the Infringement claim. 2.3 Cherwell will have the right to control the defense, select counsel, and direct the course of resolution, Including settlement of any infringement claim (but only if the settlement does not include an admission of liability by Customer, does not Involve more than the payment of money and grants Customer a full and unconditional release from all liability with respect to the claim). In addition to the defense provided by Cherwell, Customer may elect to retain its own counsel, but Cherwell will not be responsible for any fees or expenses of such counsel. 3. WARRANTIES AND DISCLAIMERS 3.1 Limited Warranties. Each party represents and warrants to the other that it has the legal power to enter into this Agreement. Cherwell further represents and warrants that: (i) it has the right to grant to Customer the license to use the Licensed Software as set forth in this Agreement without violating any rights of any third party and that, to the best of Cherwell's knowledge, the Licensed Software does not infringe or otherwise violate any Intellectual property rights of any third party; (11) the Licensed Software shall operate In material compliance with Cherwell's user documentation; (iii) all services provided by Cherwell pursuant to this Agreement relating to the Licensed Software will be performed in a timely and professional manner, by qualified and skilled individuals, and in conformity with standards generally accepted in Cherwell's industry; and (iv) the Licensed Software shall be delivered free of any virus or otherwise malicious code, or any code or command intended to bring down the Licensed Software or Customer's computers/networks automatically or upon command or otherwise impairtheir use. 3.2 Limited Remedy. Inthe event of any breach of warranty, Customer's sole and exclusive remedyshall be for Cherwell to either correct or replace, at no additional charge to Customer, any portion of the Licensed Software or services found to be defective or, if Cherwell is unable to correct or replace the defect, refund the license fees and any prepaid but unused Maintenance and Support or hosting fees paid to Cherwell by Customer; and in the event Cherwell introduces any virus or such disabling code or commands into the Licensed Software or any of Customer's equipment, make commercially reasonable efforts to restore any and all data or programming lost by Customer as a result of such virus or disabling code. 3.3 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN SECTION 3 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. CHERWELL DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS SET FORTH IN THIS SECTION 3, CHERWELL MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 4. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES 4,1 Limitation of Liability. To the maximum extent permitted by applicable law and except for Customer's payment obligations under this Agreement and Cherwell's obligation to Indemnify Customer Cherwell Us EULA (rev. 23 May 2015) Page 2 of 5