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DocuSign Envelope ID:8D6BF819-7F7F-492F-B590-6156F7327668 <br /> defending the claim at our expense. <br /> 1.2 Our obligations under this Section H(1)will not apply to the extent the claim or adverse final judgment <br /> is based on your: (a) use of a previous version of the Tyler Software and the claim would have been <br /> avoided had you installed and used the current version of the Tyler Software, which was provided to <br /> you under your Maintenance Agreement; (b) combining the Tyler Software with any product or device <br /> not provided, contemplated, or approved by us; (c) altering or modifying the Tyler Software, including <br /> any modification by third parties at your direction or otherwise permitted by you; (d) use of the Tyler <br /> Software in contradiction of this Agreement, including with non-licensed third parties; or(e)willful <br /> infringement, including use of the Tyler Software after we notify you to discontinue use due to such a <br /> claim. <br /> 1.3 If we receive information concerning an infringement or misappropriation claim related to the Tyler <br /> Software, we may, at our expense and without obligation to do so, either: (a) procure for you the right <br /> to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent, <br /> in which case you will stop running the allegedly infringing Tyler Software immediately. <br /> 1.4 If, as a result of an infringement or misappropriation claim, your use of the Tyler Software is enjoined <br /> by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to <br /> which we consent), we will, at our option, either: (a) procure the right to continue its use; (b) modify it <br /> to make it non-infringing; or(c) replace it with a functional equivalent. In the event these options are <br /> not reasonably available to us, and/or you desire to pursue other remedies available under applicable <br /> law, we will engage in the dispute resolution process set forth in Section 1(3). <br /> 2. Property Damage and Personal Injury Indemnification. We will indemnify and hold harmless you and your <br /> agents, officials, and employees from and against any and all direct claims, losses, liabilities, damages, <br /> costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property <br /> damage to the extent caused by our negligence or willful misconduct. <br /> 3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO THE <br /> MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY DISCLAIMS ALL OTHER <br /> WARRANTIES AND CONDITIONS,WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT <br /> LIMITED TO,ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR FITNESS <br /> FOR A PARTICULAR PURPOSE. <br /> 4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO <br /> THE MAXIMUM EXTENT ALLOWED UNDER NORTH CAROLINA LAW, LIABILITY FOR DAMAGES ARISING <br /> OUT OF THIS AGREEMENT,WHETHER BASED ON A THEORY OF CONTRACT OR TORT, INCLUDING <br /> NEGLIGENCE AND STRICT LIABILITY,SHALL BE LIMITED TO A PARTY'S ACTUAL DIRECT DAMAGES. THE <br /> PRICES SET FORTH IN THIS AGREEMENT ARE SET IN RELIANCE UPON THIS LIMITATION OF LIABILITY. THE <br /> FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS <br /> H(1)AND H(2). <br /> 5. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO <br /> EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR <br /> CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF <br /> SUCH DAMAGES. <br /> •= I tyler <br /> 8 • <br />