losses, damages and expenses including without limitation, court costs, arbitration fees, penalties, fines, amounts paid in settlement of claims and reasonable legal fees and expenses of investigation (collectively the "Losses") which Sparkling or any of its respective officers or directors may incur due to a breach of this warranty. Sparkling shall notify Garman in writing of any such claim within ten calendar days of a responsible officer of Sparkling becoming aware of such claim. If the Work or any portion thereof is held to constitute an infringement of another Person's rights, and use thereof is enjoined, Garman shall, at its election and expense, make every reasonable effort to correct the situation with minimal effect upon the operations of Sparkling and shall either: (a) procure the right to use the infringing element of the Work; (b) procure the right to an element which performs the same function without any material loss of functionality; or (c) replace or modify the element of the Work so that the infringing portion is no longer infringing and still performs the same function without any material loss of functionality. 14. CONFIDENTIALITY By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information means all data and information related to the business and management of either party, including proprietary and trade secrets, technology and accounting records for which access is obtained by the other party pursuant to this Agreement, provided that such Confidential Information shall not include data or information which: (a) is or becomes publicly available through no fault of the other party; (b) is already in the rightful possession of the other party prior to its receipt from the other party; (c) is independently developed by the other party; (d) is lawfully obtained by