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of the license granted (unmodified from the form provided by Microsoft and not combined with anything else) misappropriates a trade secret or directly infringes a patent, copyright, trademark or other proprietary right of a third party. If Microsoft is unable to resolve a claim of infringement under commercially reasonable terms, it may, at its option, either (1) modify or replace the Product or Fix with a functional equivalent; or (2) terminate Enrolled Affiliate's license and refund any prepaid license fees (less depreciation on a five-year, straight-line basis) for perpetual licenses and any amount paid for Online Services for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Enrolled Affiliate's continued use of a Product or Fix after being notified to stop due to a third -party claim. b. By Enrolled Affiliate. To the extent permitted by applicable law, Enrolled Affiliate will defend Microsoft against any third -party claim to the extent it alleges that: (1) any Customer Data or non -Microsoft software hosted in an Online Service by Microsoft on Enrolled Affiliate's behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Enrolled Affiliate's use of any Product or Fix, alone or in combination with anything else, violates the law or damages a third party. 12. Limitation of liability. For each Product, each party's maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Enrolled Affiliate paid for the applicable Products during the term of this Agreement, subject to the following: a. Online Services. For Online Services, Microsoft's maximum liability to Enrolled Affiliate for any incident giving rise to a claim will not exceed the amount Enrolled Affiliate paid for the Online Service during the 12 months before the incident. b. Free Products and Distributable Code. For Products provided free of charge and code that Enrolled Affiliate is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft's liability is limited to direct damages finally awarded up to US$5,000. c. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or for loss of use, loss of business information, loss of revenue, or interruption of business, however caused or on any theory of liability. d. Exceptions. No limitation or exclusions will apply to liability arising out of either party's (1) confidentiality obligations (except for all liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the her party's intellectual property rights. s- 13. Verifying compliance.' a. Right to verify compliance. Enrolled Affiliate gtup ecords relating to all use and distribution of Products by Enrolled Affiliate and ' s. Microsoft has the right, at its expense, to the extent permitted by applicable la ify such compliance with the Product's license terms. Microsoft will engage an indep uditor and Enrolled Affiliate must provide the independent auditor with any inform 'o uditor reasonably requests in furtherance of the verification, including visible ac s ms running the Products and evidence of Licenses for Products Enrolled A i s, sublicenses, or distributes to third parties. Enrolled Affiliate must provide, w out u e delay, the foregoing information and access upon request of the independent audjW, b. Verification process. Mi A 'll notify Enrolled Affiliate at least 30 calendar days in advance of its intent to v olled Affiliate's compliance with the license terms for the Products Enrolled Aff'' or distributer The independent auditor is subject to a confidentiality obligati i ' t to cover the auditor's engagement with Enrolled Affiliate for the verification roce nrolled Affiliate may, at its discretion, also require a mutually agreeable confid a ' agreement with the independent auditor for access to premises, data EA20241AgrGov(US)SLG(ENG)(Oct2023) Page 9 of 11 Document X20-10211 131