THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY
DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
22. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
Developer warrants that Developer will not knowingly infringe on the copyright or trade secrets of any
third party in performing services under this Agreement. To the extent any material used by Developer
contains matter proprietary to a third party, Developer shall obtain a license from the owner permitting the
use of such matter and granting Developer the right to sub-license its use. Developer will not knowingly
infringe upon any existing patents of third parties in the performance of services required by this
Agreement, but Developer MAKES NO WARRANTY OF NON-INFRINGEMENT of any [COUNTRY].
If any third party brings a lawsuit or proceeding against Customer based upon a claim that the Software
breaches the third party's patent, copyright or trade secrets rights, and it is determined that such
infringement has occurred, Developer shall hold Customer harmless against any loss, damage, expense
or cost, including reasonable attorney fees, arising from the claim.
This indemnification obligation shall be effective only if:
A. The third party intellectual property rights involved were known to Developer prior to delivery
of the Software
B. Customer has make all payments required by this Agreement
C. Customer has given prompt notice of the claim and permitted Developer to defend, and
D. The claim does not result from Customer's modification of the Software.
To reduce or mitigate damages, Developer may at its own expense replace the Software with a non-
infringing product.
23. LIMITATION OF DEVELOPER'S LIABILITY TO CUSTOMER
A. In no event shall Developer be liable to Customer for lost profits of Customer, or special or
consequential damages, even if Developer has been advised of the possibility of such
damages.
B. Developer's total liability under this Agreement for damages, costs and expenses, regardless
of cause, shall not exceed the total amount of fees paid to Developer by Customer under this
Agreement or [AMOUNT], whichever is greater.
C. Developer shall not be liable for any claim or demand made against Customer by any third
party except to the extent such claim or demand relates to copyright, trade secret or other
proprietary rights, and then only as provided in the section of this Agreement entitled
Intellectual Property Infringement Claims.
D. Customer shall indemnify Developer against all claims, liabilities and costs, including
reasonable attorney fees, of defending any third party claim or suit arising out of the use of
the Software provided under this Agreement, other than for infringement of intellectual
property rights. Developer shall promptly notify Customer in writing of any third party claim or
suit and Customer shall have the right to fully control the defense and any settlement of such
claim or suit.