adversely affects Excite@Home's defense. Application Provider will reasonably cooperate with Excite@Home in the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to, or prejudices or detrimentally impacts 22 23 *****Confidential Treatment has been requested for portions of this agreement. The copy file herewith omits information subject to the confidentiality request. Omissions are designated as [*****]. A complete version of this agreement has been filed separately with the Securities and Exchange Commission. Application Provider in any way, and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Application Provider's written consent (not to be unreasonably withheld or delayed), and Application Provider may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim at Application Provider's sole cost and expense. c) Except as specified in this Section, neither party makes any warranty in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability and fitness for a particular purpose regarding such subject matter. 20. LIMITATION OF LIABILITY Except as provided by Sections 19(a)(iii)(2), (a)(iii)(3), (b)(iii)(2) and (b)(iii)(3): a) Neither party will have liability for any damages other than direct damages. In no event will either party be liable to the other for any special, incidental or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, whether or not that party has been advised of the possibility of such damage. b) Either party's liability for damages shall be limited to the amounts actually paid by the other party. 21. DISPUTE RESOLUTION a) The parties agree that any breach of either of the parties' obligations regarding trademarks, service marks or trade names