*
Morningstar Provider and its content providers disclaim all other warranties or
conditions, express or implied, including, but not limited to, absence of viruses and damaging or disabling code, the implied warranties or conditions of merchantability, fitness for a particular purpose, and accuracy of informational content, any implied warranties arising from course of dealing or course of performance, and any warranties, representations or
covenants that (i) use or access to the Product or any portion of it will be uninterrupted or error-free, or (ii) that defects in the Product or any portion of it will be correctable or corrected, or (iii) that the Product or any portion of it is compatible with any particular computer software or platform.
The above disclaimers are in addition to any disclaimers contained in the applicable Product License
Agreement/Service Order
10. Limitations of Liability. Except as otherwise explicitly provided herein and except for Company Recipient's payment obligations
for fees, truces and related charges under any Agreement, the aggregate liability of each party for any actual damages arising under or in any way relating to all
Agreements entered into by the parties pursuant to this Master Agreement, whether such liability arises in contract, tort or any other legal theory, shall be limited to
the greater of (i) two hundred fifty thousand dollars ($250,000) and (ii) the total fees and costs payable by Company Recipient under all such Agreements for the two (2) year period prior to the date on which the first such claim for damages arose hereunder. The aforementioned limitations of liability will not apply to claims associated with (i) the infringement of a third party's intellectual property by the Product/Special Services; (ii) either party's willful misconduct or gross negligence; (iii) Company Recipient's misuse (including, but not limited any material violation of the use restrictions) of the Product, the Special Services or any Morningstar Mark. Additionally, neither party will be liable for the consequential, punitive, special, incidental, indirect. exemplary, collateral, special, or other, similar forms of damages, including, but not limited to, Joss of income, profit or savings, of the other party or its affiliates regardless of the form of action or the theory of recovery, even if such party has been advised of the possibility of such damages. Each party has a duty to mitigate damages that would otherwise be recoverable hereunder by taking appropriate and reasonable actions to reduce or limit the amount of such damages.
11. Indemnification.
(a) By Morningstar Provider: Morningstar Provider will, at its expense, defend Company Recipient and its affiliates, and their
respective successors and assigns, and their respective directors, officers and employees, from and against any and all third party claims, demands, suits, action and
shall pay any and all damages, losses, liabilities, taxes, penalties, fines, charges, costs and expenses (including reasonable attorneys' fees) (collectively, "Losses")
incurred by Company Recipient that arise from or relate to an allegation that the Product, the Special Services or Morningstar Marks (each, as originally delivered by Morningstar Provider to Company Recipient) infringe that third party's U.S. patent, U.S. trademark or copyright or misappropriate that third party's trade secret or other intellectual property right in the U.S.; provided, however, that Morningstar Provider shall have no obligation to indemnify or pay any costs (including reasonable attorney's fees) associated with any such third party allegation or any Losses arising therefrom or related thereto, to the extent that that third party claim could have been avoided had Company Recipient not used the Product and/or the Special Services and/or the Morningstar Mark in a manner not specifically authorized under the relevant Agreement.
If such a third-party
claim is made or appears likely to be made, Morningstar Provider, in its sole discretion, may elect: (i) to procure for Company Recipient the right to continue to use the
Product/Special Services; (ii) to replace, at Morningstar Provider's cost, the Product. the Special Services or any portion thereof, with a substitute product/service
that functions substantially in accordance with the Product's specifications; (iii) to modify the Product/Special Services so that they do not infringe or misappropriate, provided that the Product/Special Services, as modified, continues to perform substantially in accordance with the applicable specifications; or (iv) to terminate the relevant Agreement and to pay to Company Recipient a refund of any prepaid fees paid under it through the remaining portion of the then-current term. This Section 11 (a) sets forth Morningstar Provider's entire obligation to Company Recipient with respect to any claim to infringement or misappropriation.
(b) By Company Recipient: Company Recipient will, at its expense, defend Morningstar
Provider and its affiliates, and their respective successors and assigns, and their respective directors, officers and employees, from and against any and all claims, demands, suits, action and shall pay any and all Losses incurred by Morningstar Provider arising from or relating to Company Recipient's use of the Product, the Special Services or any other Morningstar Provider intellectual property made available under a particular Agreement (including, without limitation, any material breach of the applicable use and distribution restrictions contained in that Agreement); provided, however, that Company Recipient