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b. negligence or misconduct of Sensys Gatso or its employees, contractors, or agents that results
<br />in bodily injury to any natural person (including third parties) or any damage to any real or
<br />tangible personal property (including the personal property of third parties), except to the extent
<br />caused by the negligence or misconduct of any Customer Indemnitee; or
<br />c. a claim that the System infringes the copyright or U.S. patent of a third party. In the event such
<br />a claim is made or appears likely to be made, Sensys Gatso will either: (i) enable Customer to
<br />continue to use the System; (ii) modify the System to render it non -infringing; or (iii) replace
<br />the System with a replacement System at least functionally equivalent. If Sensys Gatso
<br />determines that none of these alternatives is reasonably available, Sensys Gatso shall have the
<br />right to terminate this Agreement effective immediately.
<br />5.3.2. In the event of any third party claim, action, or demand for which Customer seeks indemnification
<br />from Sensys Gatso pursuant to this Section 5.3 (each a "Claim"), the Customer must give the Sensys
<br />Gatso written notice of such Claim promptly after Customer first becomes aware of it. Sensys
<br />Gatso will have the right to choose counsel to defend against the Claim (subject to approval of such
<br />counsel by Customer, which approval may not be unreasonably withheld, conditioned, or delayed)
<br />and to control and settle the Claim. Sensys Gatso will have the right to participate in the defense
<br />of the Claim at its sole expense.
<br />5.4. LIMITATION OF LIABILITY. EXCEPT FOR AMOUNTS PAYABLE WITH RESPECT TO THE
<br />INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.3: (A) NEITHER PARTY SHALL
<br />BE LIABLE TO THE OTHER FOR LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL,
<br />CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH
<br />THE AGREEMENT, THE SERVICES, OR THE SYSTEMS, HOWEVER CAUSED, UNDER ANY
<br />THEORY OF LIABILITY; AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY FOR
<br />DIRECT DAMAGES ARISING OUT OF THE AGREEMENT AND THE TRANSACTIONS
<br />CONTEMPLATED HEREBY SHALL BE LIMITED TO THE SERVICE FEES PAID OR PAYABLE
<br />BY CUSTOMER UNDER THE APPLICABLE SERVICE ATTACHMENT DURING THE TWELVE
<br />(12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
<br />5.5. Force Majeure. Neither party shall be liable for delays in the performance of its obligations hereunder due
<br />to a Force Majeure Event. "Force Majeure Event" means conditions or other circumstances, such as acts
<br />of God, that: (a) were not foreseen, and could not have been reasonably foreseen, by the party obligated to
<br />perform, (b) are beyond the control of the party obligated to perform, and (c) materially hinder or interfere
<br />with the ability of the party obligated to perform to complete performance; provided, however, that no
<br />such condition or circumstance will be a Force Majeure Event if it is the result of the fault, negligence, or
<br />material breach of this Agreement by the party obligated to perform. Examples of Force Majeure events
<br />include wars, floods, strikes and labor disputes, unusual delay in transportation, epidemics abroad,
<br />earthquakes, severe adverse weather conditions not reasonably anticipated, and delays in permitting.
<br />5.6. Relationship between SensN s Gatso and Customer. Sensys Gatso is an independent contractor. This
<br />Agreement does not create, and nothing in this Agreement may be deemed, construed, or applied to create,
<br />a partnership, joint venture or the relationship of principal and agent or employer and employee between
<br />the parties. Further, this Agreement does not permit either party to incur any debts or liabilities or
<br />obligations on behalf of the other party, except only as specifically provided herein.
<br />5.7, AssiL�r ment. Neither party may assign this Agreement, in whole or in part, without the prior written
<br />consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding
<br />the foregoing, Sensys Gatso may assign the Agreement to an affiliate or in connection with a merger or
<br />sale of substantially all of the assets related to the Agreement, and Sensys Gatso may use third parry
<br />contractors to fulfill its obligations to provide certain Services provided that Sensys Gatso shall be
<br />responsible for the performance of such subcontractors in accordance with the terms of this Agreement.
<br />Sensys Gatso USA, Inc.
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