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recommendaticn, referral or introduction,
<br />Customer will independently investigate and test
<br />third parry products, software and services and will
<br />have sole responsibility for determining suitability
<br />for use of third party praducis, software and
<br />serolces. FARRAGUT HAS NO LIABILITY FOR
<br />CLAIMS RELATING TO OR ARISING FROM USE
<br />OF THIRD PARTY PRODUCTS, SOFTWARE OR
<br />SERVICES. FARRAGUT 'DISCLAIMS ALL
<br />REPRESENTATIONS AND WARRANTIES
<br />RELATING TO THIRD PARTY PRODUCTS,
<br />SOFTWARE AND SERVICES, INCLUDING BUT
<br />NOT LIMITED TO ALL IMPLIED WARRANTIES
<br />CONCERNING THE PERFORMANCE,
<br />MERCHANTABILITY, SUITABILITY, NON-
<br />INFRINGEMENT OR FITNESS FOR A
<br />PARTICULAR PURPOSE OF THIRD PARTY
<br />PRODUCTS, SOFTWARE AND SERVICES.
<br />9. Infringement Indemnity,
<br />9.1 Indemni .
<br />a} Farragut, at its own expense, will
<br />defend and indemnify Customer agains# claims
<br />that the So#tware infringes a United States patent
<br />or copyright, or misappropriates trade secrets,
<br />protected under United States law, provided
<br />Customer (a} gives Farragut prompt written notice
<br />of such claims, (b) permits Farragut to control the
<br />defense and settlement of the claims, and (c)
<br />provides all reasonable assistance to Farragut in
<br />defending or settling the claims.
<br />b} Farragut shall operate as an
<br />independent contractor for all purposes. The
<br />Parties agree to each be solely responsible for
<br />their own acts or omissions in the performance of
<br />each of their individual duties hereunder, and shall
<br />be financially and legally responsible for all
<br />liabilities, cos#s, damages, expenses and attorney
<br />fees resulting from, or attributable to any and ail of
<br />their individual acts or omissions to the extent
<br />allowable by law.
<br />9.2 Remedies. As to Software which is
<br />subject to a claim of infringement or
<br />misappropriation specified in Section 9.1, Farragut
<br />may (a) obtain the right of continued use of the
<br />Software for Customer or (b) replace or modify the
<br />Software to avoid the claim. If neither alternative
<br />is available, then, at the request of Farragut, any
<br />applicable Software license will terminate,
<br />Customer will stop using the Software, and
<br />Customer will return to Farragut and/or destroy
<br />(including, without limitation, deleting all electronic
<br />copies in a manner that cannot be recovered), at
<br />Farragut's option, all copies of the applicable
<br />Software, and will certify in writing to Farragut that
<br />such return and destruction has been completed.
<br />Upon Farragut's receipt of such certification,
<br />Farragut will give to Customer a credit for the price
<br />paid to Farragut, less a reasonable offset for use
<br />and obsolescence.
<br />9.3 Exclusions. Farragut will not defend or
<br />indemnify Customer, and Farragut will not be
<br />liable to Customer, if any claim of infringement or
<br />misappropria#lon: (a) results from Customer's
<br />design, alteration, modification, maintenance or
<br />support of Software, (b) results from the
<br />combination, operation or use of any Software
<br />supplied hereunder with Customer or third party
<br />equipment, devices or software to the extent such
<br />a claim would have been avoided if the Software
<br />were not used in such combination, (c} relates to
<br />any Customer products or services, or third party
<br />products or third party services, (d) failure of
<br />Customer to use Software Maintenance Releases
<br />provided by Farragut to avoid infringement; or (d)
<br />arises from Customer-specified customization
<br />work undertaken by Farragut or its designees in
<br />response to Customer specs#ications.
<br />9.4 EXCLUSIVE REMEDIES. THIS
<br />SECTION 9 STATES THE ENTIRE LIABILITY OF
<br />FARRAGUT AND CUSTOMER'S SOLE AND
<br />EXCLUSIVE REMEDIES FOR INFRINGEMENT
<br />AND TRADE SECRET MISAPPROPRIATION.
<br />i0. bispute Resolution.
<br />10.1 Disputes and .Demands. The
<br />parties agree to attempt to resolve any controversy,
<br />claim or dispute ("Dispute") arising out of or relating
<br />to this Agreement by means of good faith
<br />discussion and negotiation. In the event that a
<br />Dispute cannot be resolved a# the project level, #hen
<br />designated senior executives of the parties shall
<br />meet and enter into further good faith settlement
<br />negotiations. If such senior executives cannot
<br />resolve the Dispute within thirty (30) days, the
<br />parties agree to try in good faith to settle the dispute
<br />by mediation administered by a mutually agreed
<br />third-party mediator before resorting to arbitration. If
<br />the parties do not reach such solution within a
<br />period of sixty {60} days after engagement of a
<br />mediator, then, upon notice by either party to the
<br />other, any Dispute shall be finally settled by binding,
<br />arbitration administered by a single arbitrator under
<br />the rules of the American Arbitration Association.
<br />The venue for any mediation or arbitration shall be
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