Common use of Provider Indemnification Clause in Contracts

Provider Indemnification. Provider shall indemnify, defend, and hold harmless Podcaster from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Podcaster resulting from any third party claim, suit, action, or proceeding ("Third Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Podcaster promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. Podcaster Indemnification. Podcaster shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third Party Claim that the Podcaster IP, or any use of the Podcaster IP in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third Party Claims based on Podcaster's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Podcaster may not settle any Third Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice. Sole Remedy. THIS SECTION 10 SETS FORTH PODCASTER’S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Provider Indemnification. Subject to Section 9 above, Provider shall indemnifywill defend you from any written claim or legal proceedings brought by a third party (each, defenda “Claim”), and indemnify and hold you harmless Podcaster from and against any and all lossesthe resulting liabilities, damages, liabilitiespenalties, costs fines, costs, and expenses (including reasonable attorneys' ’ fees) ("Losses") incurred by Podcaster resulting from “Liabilities”), to the extent such Claim alleges that the Services infringe any third party claimUnited States patent, suit, actionregistered trademark, or proceeding ("Third Party Claim") copyright or that Provider misappropriated such third party’s trade secrets enforceable in the United States in the development of the Services. If a Claim is made or appears likely to occur, then Provider may, in its sole discretion, (a) procure for you the right to continue using the Services; (b) replace or any use modify the Services so that they are not infringing; or (c) terminate this Agreement with respect to the infringing portion of the Services in accordance with this Agreementand refund any prepaid, infringes or misappropriates unused fees for such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Podcaster promptly notifies Provider in writing portion of the claim, cooperates with Provider, and allows Provider sole authority Services from the date of termination through the end of the prepaid subscription period. This Section 10.1 will not apply to control the defense and settlement of such claim. Podcaster Indemnification. Podcaster shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third Party Claim extent that the Podcaster IP, or any use of the Podcaster IP in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third Party Claims based on Podcaster's or any Authorized User's alleged infringement arises from: (i) negligence or willful misconduct; (iiA) use of the Services in a manner not authorized by this Agreementagainst Provider’s written instructions; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (ivB) modifications to the Services not made by Provider; (C) Your Content or Third-Party Content; (D) Free Services, provided Beta Services, or Third-Party Services; (E) your continued use of the Services after notice of allegedly infringing material or being informed of modifications that Podcaster may not settle any Third Party Claim against Provider unless Provider consents to such settlement, would have avoided the alleged infringement in whole or in part; and further provided that Provider will have the right, at its option, to defend itself against any such Third Party Claim (F) your illegal conduct or to participate in the defense thereof by counsel breach of its own choice. Sole Remedythis Agreement. THIS SECTION 10 SETS FORTH PODCASTER10.1 DESCRIBES PROVIDER’S SOLE REMEDIES ENTIRE LIABILITY TO YOU AND PROVIDER'S SOLE LIABILITY AND OBLIGATION YOUR EXCLUSIVE REMEDY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Provider Indemnification. Provider shall indemnify, defend, indemnify and hold Customer harmless Podcaster from and against any and all lossesdamages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, damagescopyright, liabilitiesor trademark, including costs awarded or agreed in settlement by Provider (including reasonable attorneys' ’ fees) ("Losses") incurred by Podcaster resulting from any third party such claim, suit, action, or proceeding ("Third Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Podcaster promptly notifies Provider shall have received from Customer: (1) prompt written notice of such claim (but in writing of any event notice in sufficient time for Provider to respond without prejudice); (2) the claimexclusive right to control and direct the investigation, cooperates with Providerdefense, and allows Provider sole authority to control the defense and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from Customer. Podcaster IndemnificationIf Customer’s Subscription is (or in Provider’s opinion is likely to be) enjoined, if required by settlement or if Provider determines such actions are reasonably necessary to avoid liability, Provider may, in its sole discretion: (a) substitute for the Subscription substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Subscription ; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre-paid and unearned Subscription fees. Podcaster The foregoing obligations of Provider shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third Party Claim that the Podcaster IP, or any use of the Podcaster IP in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third Party Claims based on Podcaster's or any Authorized User's not apply: (i) negligence or willful misconductif the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modification; (ii) use of if the Services in a manner Subscription is combined with products or processes not provided or authorized by this AgreementProvider, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writingSubscription ; (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within the Subscription; or (ivvi) modifications if Customer settles or makes any admissions with respect to the Services not made by a claim without Provider, provided that Podcaster may not settle ’s prior written consent. This Section 9.0 sets forth Provider’s and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any Third Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel claim of its own choice. Sole Remedy. THIS SECTION 10 SETS FORTH PODCASTER’S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIMintellectual property infringement.

Provider Indemnification. Provider shall indemnify, defend, and hold harmless Podcaster Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Podcaster Customer resulting from any third third-party claim, suit, action, or proceeding ("Third Third-Party Claim") that the Services, or any use of the Services in accordance with this S-a-a-S Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Podcaster Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. Podcaster Indemnification. Podcaster shall indemnifyIf such a claim is made or appears possible, hold harmless, andCustomer agrees to permit Provider, at Provider's optionsole discretion, defend to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider from and against any Losses resulting from any Third Party Claim determines that neither alternative is reasonably available, Provider may terminate this S-a-a-S Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply to the extent that the Podcaster IP, or any use of the Podcaster IP in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third Party Claims based on Podcaster's or any Authorized User's alleged infringement arises from: (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iiiA) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this S-a-a-S Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized System User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this S-a-a-S Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Podcaster Customer may not settle any Third Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third Third-Party Claim or to participate in the defense thereof by counsel of its own choice. Sole Remedy. THIS SECTION 10 SETS FORTH PODCASTER’S CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED $25,000.00. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) 3 TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIMCLAIM OR $25,000.00, WHICHEVER IS LESS. Term and Termination.

Provider Indemnification. Provider shall indemnify, defend, and hold harmless Podcaster Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Podcaster Customer resulting from any third third-party claim, suit, action, or proceeding ("Third Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US , patents, copyrights, or trade secrets, provided that Podcaster Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. Podcaster Indemnification. Podcaster shall indemnifyIf such a claim is made or appears possible, hold harmless, andCustomer agrees to permit Provider, at Provider's optionsole discretion, defend Provider from and against any Losses resulting from any Third Party Claim that to (A) modify or replace the Podcaster IPServices, or any use of component or part thereof, to make it non-infringing, or (B) obtain the Podcaster IP in accordance with right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, infringes in its entirety or misappropriates such third party's intellectual property rights and any Third Party Claims based with respect to the affected component or part, effective immediately on Podcaster's or any Authorized User's written notice to Customer. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iiiA) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (ivB) modifications to the Services not made by Provider; or (C) Customer Data ; or (D) Third-Party Products. Customer Indemnification. Customer shall indemnify, provided that Podcaster may not settle any Third Party Claim against Provider unless Provider consents to such settlementhold harmless, and further provided that Provider will have the rightand, at its Provider's option, defend Provider against all claims, liability, damages, losses, costs and expenses, including legal fees, suffered by us and arising out of or related to defend itself against any such Third Party Claim breach of this Agreement by you or to participate in any other liabilities incurred by us arising out of your use of the defense thereof services, or use by counsel any other person accessing the services using your user account, device or internet access account; or your violation of its own choiceany law or rights of any third party. Sole Remedy. THIS SECTION 10 9 SETS FORTH PODCASTER’S CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Provider Indemnification. Provider shall indemnify, defend, indemnify and hold Customer harmless Podcaster from and against any and all lossesdamages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, damagescopyright, liabilitiesor trademark, including costs awarded or agreed in settlement by Provider (including reasonable attorneys' ’ fees) ("Losses") incurred by Podcaster resulting from any third party such claim, suit, action, or proceeding ("Third Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Podcaster promptly notifies Provider shall have received from Customer: (1) prompt written notice of such claim (but in writing of any event notice in sufficient time for Provider to respond without prejudice); (2) the claimexclusive right to control and direct the investigation, cooperates with Providerdefense, and allows Provider sole authority to control the defense and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from Customer. Podcaster IndemnificationIf Customer’s Subscription is (or in Provider’s opinion is likely to be) enjoined, if required by settlement or if Provider determines such actions are reasonably necessary to avoid liability, Provider may, in its sole discretion: (a) substitute for the Subscription substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Subscription ; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre- paid and unearned Subscription fees. Podcaster The foregoing obligations of Provider shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third Party Claim that the Podcaster IP, or any use of the Podcaster IP in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third Party Claims based on Podcaster's or any Authorized User's not apply: (i) negligence or willful misconductif the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modification; (ii) use of if the Services in a manner Subscription is combined with products or processes not provided or authorized by this AgreementProvider, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writingSubscription ; (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within the Subscription; or (ivvi) modifications if Customer settles or makes any admissions with respect to the Services not made by a claim without Provider, provided that Podcaster may not settle ’s prior written consent. This Section 9.0 sets forth Provider’s and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any Third Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel claim of its own choice. Sole Remedy. THIS SECTION 10 SETS FORTH PODCASTER’S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIMintellectual property infringement .