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this Agreement; (v) compliance with the Customer's written instructions or specifications; or (vi) use of the
<br />Software after notice from SmartWorks that it should cease due to possible infringement.
<br />(c) In the event that Customer's use of the Software is finally held to be infringing or SmartWorks deems that
<br />it may be held to be infringing, Customer agrees that SmartWorks shall have the right, in SmartWorks' sole
<br />discretion to: (1) procure for Customer the right to continue use of the Software; or (2) modify or replace the
<br />Software so that it becomes non -infringing.
<br />(d) The foregoing states SmartWorks' entire liability, and Customer's exclusive remedy, with respect to any
<br />claims of infringement of any copyright, patent, trade -mark, trade secret or other intellectual property and property
<br />interest rights relating to the Software, or any part thereof or use thereof. The indemnity provisions of this Section
<br />11 shall not apply to any Third Party Software.
<br />12. Limitation of Liability.
<br />TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMARTWORKS, ITS
<br />AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND
<br />SHAREHOLDERS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
<br />PUNITIVE, OR SPECIAL DAMAGES, FOR LOST REVENUE OR LOSS OF PROFITS, LOSS OF BUSINESS,
<br />LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR COST OF SUBSTITUTE GOODS OR
<br />SERVICES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT
<br />OR IN TORT (INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE) OR UNDER ANY OTHER LEGAL
<br />THEORY, EVEN IF IT HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH LOSS
<br />OR DAMAGE OR SUCH LOSS OR DAMAGE IS FORSEEABLE AND NOTWITHSTANDING ANY FAILURE OF
<br />THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
<br />SMARTWORKS, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
<br />EMPLOYEES AND SHAREHOLDERS' ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH
<br />RESPECT TO THE SOFTWARE, AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY
<br />SMARTWORKS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND
<br />REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING
<br />FUNDAMENTAL BREACH, NEGLIGENCE, STRICT LIABILITYOR OTHERWISE, SHALL NOT EXCEED IN THE
<br />AGGREGATE AN AMOUNT THAT IS EQUAL TO THE SUM OF: THE LICENSE FEES PAID TO SMARTWORKS
<br />BY CUSTOMER UNDER THIS AGREEMENT; AND THE MAINTENANCE AND SUPPORT FEES PAID TO
<br />SMARTWORKS IN THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
<br />13. Termination. This Agreement may be terminated as follows:
<br />(a) If either party is in material breach of any of its obligations or any provision under this Agreement, the
<br />other party must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt of a Default
<br />Notice, the breaching party must correct the default within ninety (90) days, or issue a written notice of its own
<br />disputing the alleged default within thirty (30) days, of the date of receipt of a Default Notice. If the breaching
<br />party fails to correct the default within such ninety (90) day period, and did not issue a notice disputing the alleged
<br />default within such thirty (30) day period, the other party may terminate this Agreement upon written notice to
<br />breaching party to that effect
<br />(b) If Customer has failed to pay any of the Fees when due, then SmartWorks or its authorized reseller shall
<br />have the right to terminate this Agreement effective immediately upon written notice to that effect. If Customer
<br />has failed to pay any Maintenance and Support Fees when due, SmartWorks may, at its option, suspend
<br />Maintenance and Support Services until all outstanding Maintenance and Support Fees have been paid in full
<br />and/or exercise its right to terminate this Agreement in accordance with this section.
<br />(c) Notwithstanding any other provision of this Agreement, if the Customer breaches (i) any term of Section
<br />4, Section 7, or any other Intellectual Property Right of SmartWorks; or (ii) its confidentiality obligations under
<br />Section 9, then SmartWorks shall have the right to terminate this Agreement effective immediately upon written
<br />notice to Customer to that effect.
<br />(d) Either party may terminate this Agreement effective immediately upon written notice to the other party if
<br />the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy,
<br />insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not
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