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SECURITY, DURABILITY, INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF
<br />AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF
<br />USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF.
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<br />c. For a breach of the limited warranties set forth in Section 5, for any error or other defect for which Innovative
<br />is solely responsible, Innovative will, at its option, either (i) correct or repair the Software, or (ii) acce pt termination
<br />of this Agreement and refund the unused balance of any prepaid Fees for the maintenance and support services,
<br />prorated for the period commencing on the date the error or defect was reported by Client to Innovative and
<br />continuing throughout the balance of the period to which such Fees apply. All license Fees shall be nonrefundable.
<br />None of the above warranties or remedies in this Section 5 will apply with respect to any Software that has been
<br />damaged or modified by any party other than Innovative, or used in a manner for which the Software is not designed
<br />or intended.
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<br />6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENTED PERMITTED BY LAW IN NO EVENT WILL
<br />INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT,
<br />SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF
<br />INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE
<br />OTHERWISE FORESEEABLE. INNOVATIVE’S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
<br />DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
<br />THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
<br />A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
<br />OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
<br />SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
<br />AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE
<br />WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
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<br />7. Indemnification.
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<br />a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software,
<br />as delivered to Client by Innovative, directly inf ringes such third party’s U.S. copyright or U.S. patent, Innovative will
<br />defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action
<br />and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from
<br />all damages and out-of-pocket costs (including reasonable attorneys’ fees) finally awarded by a court of competent
<br />jurisdiction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control
<br />all aspects of the defense and conduct the defense and any settlement negotiations in any such third -party legal
<br />action. This indemnification is limited to the Software in the form delivered to Client and does not co ver claims
<br />arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y)
<br />use of the Software in combination with other software or items not provided by Innovative, or (z) third party
<br />modifications (including addition of source code) to the Software.
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<br />b. under the limited indemnity set forth in Section 7.a, if the use of the Software by Client is enjoined,
<br />Innovative will, at its sole option: (i) obtain for Client the right to continue to use the Softw are, (ii) modify the Software
<br />to remove the cause of the legal action, (iii) replace the Software at no additional charge to Client with a substantially
<br />similar, non-infringing product, which will then be subject to the provisions of this Agreement, or (iv ) terminate this
<br />Agreement and refund to Client the unused Fees for maintenance and support, prorated for the period Client’s use
<br />of the Software is enjoined. None of the above warranties or remedies will apply with respect to any element of the
<br />Software that has been modified by any party other than Innovative, or used in a manner for which the Software is
<br />not designed or intended. This Section states Innovative’s entire liability and Client’s exclusive remedies for
<br />infringement of intellectual property rights of any kind.
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<br />8. Confidentiality.
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<br />a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications
<br />and other information pertaining to the Software, and/or Innovative's business interests or activities, product pricing,
<br />financial information, methods of operation or customers that are disclosed by any party to Client in the course of
<br />performing this Agreement are the confidential and proprietary information of Innovative. Innovative acknowledges
<br />that Client Data and other proprietary Client materials are the confidential information of Client. The information
<br />and materials described in the preceding sentences is referred to herein as "Confidential Information."
<br />Notwithstanding the foregoing, the term "Confidential Information" does not include information pertaining to a party
<br />DocuSign Envelope ID: F014C755-030D-478F-806C-6FB970D9CCD2
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