It is further understood and agreed that money damages would not be a sufficient remedy for any breach by Recipient of Recipient’s obligations under this Section 11 and that Discloser shall be entitled to specific injunctive relief, subject to the second to last sentence in Section 16 below, as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of such obligations but shall be in addition to all other available legal or equitable remedies.
This Section 11 shall survive the expiration or termination of this Agreement.
DISCLAIMER.
EXCEPT AS SET FORTH IN SECTION 7 OF THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TREMOR SHALL NOT BE LIABLE FOR: (1) ANY MEDIA ON WHICH THE ADVERTISING APPEARS; (2) THE CONTENTS OF ANY ADVERTISING NOT SOLD BY TREMOR ; OR (3 UNAVAILABILITY OR INOPERABILITY OF TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, OR CORRUPTION OR LOSS OF INFORMATION, OR THE TIMELINESS OF THE DELIVERY OF REPORTING DATA, TREMOR DISCLAIMS ALL LIABILITY ARISING SOLELY FROM (I) PUBLISHER’S OTHER SERVICE PROVIDERS WHOSE SERVICES MAY BE USED IN CONJUNCTION WITH THE SERVICES OR (II) CAUSES BEYOND THE REASONABLE CONTROL OF TREMOR.
INDEMNIFICATION.
INDEMNIFICATION BY TREMOR. Tremor will indemnify, defend and hold harmless Publisher, and its officers, directors, employees and agents from and against any and all costs, liabilities, losses and expenses, including, without limitation, reasonable attorneys’ fees, arising from any claim, suit, action or proceeding brought by any third party against Publisher alleging (1) that the Tags, Ads, Acudeo, and Services (including the Tremor software and equipment, but excluding any content, information or materials provided by Publisher or an Advertiser not sold by Tremor) infringe or misappropriate, as applicable, any United States patent, copyright, trade secret or trademark, music synchronization, literary or dramatic right or right of privacy of any claimant, constitutes a libel or slander of such claimant, or violate any applicable laws, rules or regulations, including any advertising and privacy laws; and (2) breach by Tremor of any of Tremor’s representations, warranties, or obligations set forth in this Agreement. If a court of competent jurisdiction or Tremor determines that any claim described in this sub-section prevails or is likely to prevail, Tremor may, at its option and expense (i) procure the right for Publisher to continue to use the applicable subject matter; (ii) replace or modify the applicable subject matter so that they or it no longer infringes or misappropriates, as applicable, any such patent, copyright, trade secret or trademark; or (iii) terminate this Agreement. Tremor’s obligations in this Section 13 shall not apply to the extent such infringement arises as a result of (i) modifications to the software that is provided with the Services made other than by Tremor or Tremor’s authorized representatives, or (ii) the combination or use of the Services with materials not supplied by Tremor.
INDEMNIFICATION BY PUBLISHER. Publisher shall indemnify, defend and hold harmless Tremor, and its officers, directors, employees and agents from and against any and all costs, liabilities, losses and expenses, including, without limitation, reasonable attorneys’ fees, resulting from any claim, suit, action or proceeding brought by any third party against Tremor alleging (i) that the Publisher Content or Publisher Sites infringe or misappropriate, as applicable, any United States patent, copyright, trade secret or trademark music synchronization, literary or dramatic right or right of privacy of any claimant, constitutes a libel or slander of such claimant, or violate any applicable laws, rules or regulations, including any advertising and privacy laws, (ii) breach by Publisher of any of Publisher’s representations, warranties or obligations set forth in this Agreement and (iii) Publisher’s misuse of the Services.
INDEMNIFICATION OBLIGATIONS. If any action is brought against either party in respect to any allegation for which indemnification may be sought from the other party, the indemnified Party will promptly notify the indemnifying party of any such claim of which it becomes aware and will (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of any such claim, provided, that failure to notify the indemnifying party will not relieve the indemnifying party of any liability that the indemnifying party may have, except to the extent that such failure materially prejudices the indemnifying party’s legal rights, and (ii) be entitled to participate at its own expense in the defense of any such claim. The indemnified party agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the indemnifying party will not acquiesce to any judgment or enter into any settlement that adversely affects the indemnified party's rights or interests without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.
LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, however caused and under any theory of liability and whether or not such Party was or should have been aware or advised of the possibility of such damagE. EXCEPT IN CONNECTION WITH EITHER PARTY’S OBLIGATIONS RELATING TO INDEMNIFICATION OF THIRD PARTY CLAIMS OR PROTECTION OF INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION, IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED TWO (2) TIMES THE FEES PAID OR PAYABLE FOR THE SERVICES AS TO WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH CLAIM AROSE.
