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<br />- 6 -
<br />of this Agreement by either party will be a
<br />nonexclusive remedy for breach and will be without
<br />prejudice to any other right or remedy of such party.
<br />Termination of this Agreement will not relieve
<br />Customer of its obligation to pay all fees and
<br />expenses that accrued before such termination.
<br />
<br />7.7 Amendment. The terms of this Agreement
<br />may only be amended with a written Amendment
<br />executed by both Parties.
<br />
<br />8. Limitation of Damages.
<br />
<br />8.1 Back-Ups; Customer Data. Customer is
<br />responsible for assuring and maintaining the
<br />backup of all Customer data, software and network
<br />systems. UNDER NO CIRCUMSTANCES WILL
<br />FARRAGUT BE LIABLE TO CUSTOMER OR ANY
<br />THIRD PARTY FOR THE LOSS OF,
<br />CORRUPTION OF, OR DAMAGE TO
<br />CUSTOMER DATA, SOFTWARE OR NETWORK
<br />SYSTEMS
<br />
<br />8.2 Limitation of Liability.
<br />NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY IN THIS AGREEMENT, TO THE
<br />MAXIMUM EXTENT PERMITTED BY
<br />APPLICABLE LAW, FARRAGUT WILL NOT BE
<br />LIABLE TO CUSTOMER FOR ANY SPECIAL,
<br />INDIRECT, INCIDENTAL, PUNITIVE, OR
<br />CONSEQUENTIAL DAMAGES (INCLUDING
<br />LOST PROFITS) OR FOR LOST DATA
<br />SUSTAINED OR INCURRED IN CONNECTION
<br />WITH THIS AGREEMENT, THE SOFTWARE,
<br />SOFTWARE SUPPORT, OR ANY OTHER
<br />SERVICES, EVEN IF ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES,
<br />REGARDLESS OF THE FORM OF ACTION AND
<br />WHETHER OR NOT SUCH DAMAGES ARE
<br />FORESEEABLE. IN ADDITION, FARRAGUT’S
<br />TOTAL LIABILITY TO CUSTOMER FOR DIRECT
<br />DAMAGES ARISING OUT OF OR RELATING TO
<br />THIS AGREEMENT, THE SOFTWARE,
<br />SOFTWARE SUPPORT, OR ANY OTHER
<br />SERVICES WILL IN NO EVENT EXCEED THE
<br />TOTAL AMOUNT ACTUALLY PAID BY
<br />CUSTOMER TO FARRAGUT UNDER THIS
<br />AGREEMENT DURING THE TWELVE MONTH
<br />PERIOD IMMEDIATELY PRECEDING THE
<br />EVENT CAUSING SUCH DAMAGES. .
<br />
<br />8.3 High Risk Application Disclaimer. Farragut
<br />has not tested or certified its Software for use in
<br />high-risk applications including, without limitation,
<br />medical transport, 911 response, nuclear facilities,
<br />weapon systems, mass transit and air
<br />transportation control, medical applications, or any
<br />other life critical uses or inherently dangerous
<br />activities. Customer understands and agrees that
<br />Farragut makes no assurances that the Software is
<br />suitable for any high-risk uses or inherently
<br />dangerous activities.
<br />
<br />8.4 Referrals. FARRAGUT IS NOT
<br />PROVIDING TO CUSTOMER ANY THIRD PARTY
<br />PRODUCTS, SOFTWARE OR SERVICES
<br />PURSUANT TO THIS AGREEMENT. Farragut
<br />may direct Customer to third parties having
<br />products, software or services that may be of
<br />interest to Customer for use in conjunction with the
<br />Software. Notwithstanding any Farragut
<br />recommendation, referral or introduction,
<br />Customer will independently investigate and test
<br />third party products, software and services and will
<br />have sole responsibility for determining suitability
<br />for use of third party products, software and
<br />services. FARRAGUT HAS NO LIABILITY FOR
<br />CLAIMS RELATING TO OR ARISING FROM USE
<br />OF THIRD PARTY PRODUCTS, SOFTWARE OR
<br />SERVICES. FARRAGUT DISCLAIMS ALL
<br />REPRESENTATIONS AND WARRANTIES
<br />RELATING TO THIRD PARTY PRODUCTS,
<br />SOFTWARE AND SERVICES, INCLUDING BUT
<br />NOT LIMITED TO ALL IMPLIED WARRANTIES
<br />CONCERNING THE PERFORMANCE,
<br />MERCHANTABILITY, SUITABILITY, NON-
<br />INFRINGEMENT OR FITNESS FOR A
<br />PARTICULAR PURPOSE OF THIRD PARTY
<br />PRODUCTS, SOFTWARE AND SERVICES.
<br />
<br />9. Infringement Indemnity.
<br />
<br />9.1 Indemnity.
<br />
<br />a) Farragut, at its own expense, will
<br />defend and indemnify Customer against claims that
<br />the Software infringes a United States patent or
<br />copyright, or misappropriates trade secrets,
<br />protected under United States law, provided
<br />Customer (a) gives Farragut prompt written notice
<br />of such claims, (b) permits Farragut to control the
<br />defense and settlement of the claims, and (c)
<br />provides all reasonable assistance to Farragut in
<br />defending or settling the claims.
<br />
<br />b) Farragut shall operate as an
<br />independent contractor for all purposes. The
<br />Parties agree to each be solely responsible for their
<br />own acts or omissions in the performance of each
<br />of their individual duties hereunder, and shall be
<br />financially and legally responsible for all liabilities,
<br />costs, damages, expenses and attorney fees
<br />DocuSign Envelope ID: 7DCC2B8A-E44C-4172-BF52-8A8B6D647BED
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