of any third party's patent, copyright or trade secret in any country, or if the distribution of use of the Licensed Technology is enjoined, then D2 may, at D2's sole option and expense, (i) obtain for LICENSEE and its distributors, resellers and customers the right to distribute or use the Licensed Technology under such third party patents, trade secrets, copyrights or other intellectual property rights, or (ii) replace the Licensed Technology with other software of equivalent or superior functionality, or (iii) suitably modify the Licensed Technology to avoid such infringement. In the event that D2 is unable to carry out the options set forth in (i), (ii) and (iii) of the proceeding sentence, at the option of Licensee D2 may terminate this Agreement and refund all amounts paid by LICENSEE to D2 hereunder; provided, that such termination shall have no effect on the rights of end users to use LICENSEE products, incorporating any Licensed Technology, which were acquired by such end users prior to such termination. 11. LIMITATION OF LIABILITY IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR SUCH OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL D2'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT PAID OR OWED BY LICENSEE TO D2 UNDER THIS AGREEMENT. 12. CONFIDENTIALITY. 12.1 Confidential Information. As used in this Agreement, the term "Confidential Information" shall mean any information disclosed by one party to another pursuant to this Agreement which is marked as confidential or proprietary, or, if disclosed orally, is designated as confidential at the time of disclosure and is subsequently reduced to a writing