|
c. The exclusive remedy of Client under the limited warranties set forth in Sections 5(a) and 5(b) are set forth in
<br /> Sections 5(a) and 5(b), respectively.
<br /> d. EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY
<br /> WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED
<br /> OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS AFFILIATES, AGENTS,
<br /> SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND
<br /> EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND
<br /> CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE,
<br /> COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING,
<br /> WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
<br /> PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING,
<br /> INNOVATIVE AND ITS AFFILIATES,AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT,
<br /> AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR
<br /> OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S
<br /> REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-FREE OR
<br /> UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE
<br /> CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTIONS 5(a)AND 5(b), THE SERVICES
<br /> AND WORK PRODUCT ARE PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
<br /> REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
<br /> INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY
<br /> FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF.
<br /> 6. LIMITATIONS ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR
<br /> OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
<br /> UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAD BEEN ADVISED OF THE
<br /> POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE'S
<br /> TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL
<br /> AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER THE APPLICABLE SOW UPON WHICH
<br /> A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE, LESS AGGREGATE DAMAGES PREVIOUSLY PAID
<br /> BY INNOVATIVE UNDER THIS AGREEMENT. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR
<br /> DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH
<br /> IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE
<br /> IN THE AGGREGATE (NOT PER INCIDENT)AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES
<br /> ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
<br /> 7. Indemnification. Innovative will defend Client in any legal action filed by a third party against Client claiming
<br /> the Services or Work Product as delivered to Client by Innovative pursuant to Section 1 infringes a U.S.
<br /> copyright or U.S. patent; provided in each case that Client promptly notifies Innovative in writing of such claim
<br /> and fully cooperates with Innovative in the defense of such claim. Innovative will also indemnify and hold Client
<br /> harmless from any and all damages and costs (including reasonable attorney's fees)finally awarded by a court
<br /> of competent jurisdiction in connection with any such claim, or agreed by Innovative in a settlement of such
<br /> claim. Innovative will conduct the defense and any settlement negotiations in any such third-party action arising
<br /> as described herein. This indemnification is limited to the Services and Work Product in the form delivered to
<br /> Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by
<br /> Innovative, at the request of Client; (y) use of the Services and Work Product in combination with other software
<br /> or items not provided by Innovative; or(z) third-party source code included in the Services and Work Product.
<br /> If the use of the Services or Work Product by Client is enjoined, Innovative will, at its sole option: (i) obtain for
<br /> Client the right to continue to use the Services or Work Product, (ii) modify the Services and Work Product to
<br /> remove the cause of the claim, action or suit, (iii) replace the Services and Work Product at no additional charge
<br /> to Client with an equally suitable, non-infringing service or work product, which will then be subject to the
<br /> provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees
<br /> allocable to the infringing component of the Services and Work Product, prorated for the period Client's use of
<br /> the Services and Work Product is enjoined. None of the above warranties or remedies will apply with respect
<br /> to any element of the Services and Work Product that has been modified by any party other than Innovative, or
<br /> used in a manner for which the Services and Work Product are not designed or intended. This section states
<br /> Innovative's entire liability and Client's exclusive remedies for infringement of intellectual property rights of any
<br /> kind.
<br /> Page 5 of 13
<br />
|