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technologies
<br />right to continue to use the CA Offering; (ii) repair, modify or replace the CA Offering so that it is no longer infringing; or (iii) provide
<br />a pro -rated refund to the Authorized CA Partner of the fees paid for the CA Offering which gave rise to the indemnity calculated
<br />against the remainder of the Term from the date it is established that CA is notified of the third party claim. If the CA Offering is CA
<br />Software, and is licensed on a perpetual basis, an amortization schedule of three (3) years shall be used for the basis of the refund
<br />calculation.
<br />8.2 CA shall have no liability: (i) in the event the allegation of infringement is a result of a modification of the CA Offering except a
<br />modification by CA, (ii) if the CA Offering is not being used in accordance with CA's specifications, related documentation and
<br />guidelines, (iii) if the alleged infringement would be avoided or otherwise eliminated by the use of a CA published update or patch,
<br />(iv) if the alleged infringement is a result of use of the CA Offerings in combination with any third party product, or (v) if the
<br />applicable fees due for the specific CA Offering have not been paid by Ordering Activity or Prime Contractor to its Authorized CA
<br />Partner. The indemnifications contained herein shall not apply and CA shall have no liability in relation to any CA Offering produced
<br />by CA at the specific direction of Ordering Activity. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF
<br />CA REGARDING CLAIMS OF INFRINGEMENT, AND THE EXCLUSIVE REMEDY AVAILABLE TO ORDERING ACTIVITY WITH RESPECT TO
<br />ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY
<br />RIGHTS.
<br />8.3 CA shall indemnify Ordering Activity against all damages, fees, (including reasonable attorney's fees) fines, judgments, costs and
<br />expenses finally awarded as a result of a third party action alleging a bodily injury or death which arises under the Agreement,
<br />provided that such liabilities are the proximate result of gross negligence or intentional tortuous conduct on the part ofCA.
<br />8.4 The above indemnities are contingent upon: (i) Ordering Activity providing prompt notice of any claim of infringement and
<br />assistance in the defense thereof, (ii) CA's right to consult with Ordering Activity at any time and to intervene in the proceedings
<br />through CA's chosen counsel at CA's expense, provided that Ordering Activity shall not have the right to settle any claim requiring CA
<br />to make a payment or to admit liability without CA's prior written agreement , and (iii) Ordering Activity not taking any actions or
<br />failing to take actions that hinder the defense or settlement process.
<br />9. LIMITATION OF LIABILITY
<br />EXCEPT IN THE CASE OF A BREACH OF TITLE, INFRINGMENT OF CA'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY, OR OF THIRD
<br />PARTY CLAIMS ARISING UNDER THE INDEMNIFICATION SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER
<br />PARTY (INCLUDING ANY OF CA'S SUPPLIERS) SHALL BE LIABLE FOR A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE
<br />DAMAGES OF ANY NATURE, INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, DAMAGES RELATING TO MONIES SAVED OR
<br />FEES GENERATED AND OR ANY LOSS OF DATA BY USE OF ANY CA OFFERING, REGARDLESS OF WHETHER A PARTY WAS APPRISED OF THE
<br />POTENTIAL FOR SUCH DAMAGES; AND B) IN NO EVENT WILL A PARTY'S LIABILITY, EXCEED THE FEES PAID AND OR OWED TO CA FOR THE
<br />THEN CURRENT INITIAL OR RENEWAL TERM FOR WHICH THE ORDERING ACTIVITY HAS PROCURED THE CA OFFERING OR AS FURTHER
<br />DEFINED IN THE MODULE. FURTHERMORE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CA SHALL NOT INCUR ANY
<br />LIABILITY FOR DEATH OR BODILY INJURY TO ANY THIRD PARTY UNLESS THE SAME ARISES FROM THE INTENTIONAL OR GROSSLY
<br />NEGLIGENT ACT(S) OF CA. This clause shall not impair the U.S. Government's right to recover for fraud or crimes arising out of or related
<br />to this Agreement under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733.
<br />10. TERM & TERMINATION
<br />10.1 This Foundation Agreement shall continue in effect unless otherwise terminated in accordance with this section or as required
<br />pursuant to Federal Acquisition Regulation (FAR) 52.212-4 "Contract Terms and Conditions- Commercial Items" sections (1)
<br />"Termination for the Government's Convenience" and (m) "Termination for Cause."
<br />10.2 In the event Ordering Activity elects to terminate an order for its convenience prior to the expiration of the then current term, and
<br />such order includes licenses for CA Software, Ordering Activity shall also, within a reasonable period of time, delete all copies of such
<br />software from its systems, including copies stored for archival purposes and either destroy or return them to CA. The foregoingshall
<br />not apply, however, where such licenses were perpetual and Ordering Activity, at the time of such termination, has paid all
<br />associated perpetual license fees.
<br />10.3 Termination does not release either Party from any liability which, at the time of such termination, had already accrued to the other
<br />Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it
<br />may have under law or in equity with respect to any breach of this Foundation Agreement or the Agreement.
<br />11. DISPUTE RESOLUTION
<br />11.1 Prior to the initiation of formal dispute resolution procedures regarding any dispute, controversy, or claim arising out of the
<br />Agreement or interpretation thereof (a "Dispute"), the Parties shall first meet as often, and for such duration and as promptly as the
<br />Parties reasonably deem necessary to discuss the Dispute and negotiate in good faith in an effort to resolve it.
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