Software by Sparkling; or (4) the Software being transferred to a different networking environment or hardware configuration without the prior written consent of Garman; or (5) any failure of the hardware or the operating system not caused by Garman or the Software. 11. FEES Sparkling shall pay the fees as set out in the Fee Schedule in accordance with the terms of this Agreement and the Fee Schedule. 12. SPECIFICATIONS AND WARRANTY For the acceptance period and for a period of one year from the Maintenance Commencement Date, and thereafter for as long as the Software is covered by Maintenance Services and is used by Sparkling in accordance with this Agreement, Garman warrants that the Software shall perform in conformance with the Specifications in all material respects. 13. INTELLECTUAL PROPERTY INDEMNITY Garman is the owner of all intellectual property rights in the Work (including any Improvements or Modifications thereto), including all related materials, logos, and names provided pursuant to the terms of this Agreement. No title to the intellectual property in the Work is transferred to Sparkling by this Agreement. PAGE 6 Garman represents and warrants that it owns or controls all rights necessary to grant the rights to Sparkling in accordance with this Agreement and that there are not, nor will there be, any lien, encumbrance, security interest or other rights against the Work which will interfere in any way with the rights granted to Sparkling. Garman agrees to indemnify Sparkling and hold it harmless from any and all 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