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6 <br />do not allow the exclusion of certain warranties or the limitation or exclusion of liability for <br />incidental or consequential damages. Accordingly, some of the above limitations may not apply. <br /> <br /> <br /> <br /> <br />11. Maximum Liability <br /> <br />NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT, THE MAXIMUM <br />LIABILITY OF GOSECTION8.COM FOR DAMAGES TO CLIENT IS THE TOTAL FEES <br />RECEIVED BY GOSECTION8.COM UNDER THIS AGREEMENT. The provisions of this <br />Section 11, shall not apply to any claim or action arising under the confidentiality, intellectual <br />property, or indemnification provisions of this Agreement. <br /> <br /> <br />12. Indemnity <br /> <br />GoSection8.com shall defend, indemnify and hold harmless Client and its officers, directors, <br />employees and agents from and against any and all liabilities, damages, losses or expenses, <br />including reasonable attorneys' fees and costs, arising out of any third party claims or <br />administrative or criminal proceedings alleging that the use of the Content, Licensed Programs, <br />Documentation or the Site infringes the intellectual property rights of a third party, provided that <br />Client (a) promptly gives written notice of the claim or proceeding to GoSection8.com; (b) gives <br />GoSection8.com sole control of the defense and settlement of the claim or proceeding (provided <br />that GoSection8.com may not settle such claim or proceeding without Client’s consent, and such <br />consent shall not be unreasonably withheld, unless GoSection8.com unconditionally releases <br />Client of all liability); and (c) provides to GoSection8.com, at GoSection8.com’s cost, all <br />reasonable assistance. <br /> <br />If Client’s quiet enjoyment and use of the Licensed Programs is disrupted as a result of a third <br />party infringement claim, GoSection8.com shall perform one or all of the following actions within <br />ninety (90) days of the date Client notifies GoSection8.com of such third party's claim: <br /> <br />(1) Replacement: Replace the Licensed Program(s) by implementing a non-infringing <br />software product of equivalent functional and performance capability of the Licensed Program(s); <br />or <br /> <br />(2) Modification: Modify the Licensed Program(s) to avoid the infringement without <br />eliminating the functional and performance capabilities of the Licensed Program(s) as described <br />in the Documentation; or <br /> <br />(3) Obtain License: Obtain a license from the third party claiming infringement for Client’s <br />use of the Licensed Program(s); or, failing to provide any of these three alternatives, <br /> <br />(4) Refund: Refund to Client a prorated portion of the license fees paid hereunder. <br />