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DocuSign Envelope ID: 1 F5180CC-F9F6-4D55-A9A8-581 CB73213A5
<br /> 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.
<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) accept 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.
<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.
<br /> 7. Indemnification.
<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 infringes 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 cover 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.
<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 Software, (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.
<br /> 8. Confidentiality.
<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
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