or replacement of such nonconforming item with product that
conforms to the warranty. Allscripts warrants that Services provided under this
Agreement will be performed professionally, in a workmanlike manner, and by
individuals with appropriate skills and expertise. Customer must notify
Allscripts promptly if Customer is dissatisfied at any time with the performance
of Services delivered hereunder. If Allscripts agrees that performance was
materially below the level of competence reasonably associated with the
Services, Allscripts will arrange for the performance to be raised to the
warranted level and, if necessary, for the Services to be re-performed.
THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY
ALLSCRIPTS WITH RESPECT TO THE SOFTWARE, EQUIPMENT, SERVICES, AND THIRD PARTY
PRODUCTS. ALLSCRIPTS DOES NOT MAKE, NOR DOES THE CUSTOMER RECEIVE, ANY OTHER
WARRANTY, WHETHER EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY, OF
FITNESS FOR A PARTICULAR PURPOSE, AND OF COMPATIBILITY WITH CUSTOMER'S COMPUTER
HARDWARE AND/OR SOFTWARE SYSTEM AND/OR NETWORK ARE EXPRESSLY EXCLUDED. CUSTOMER
IS SOLELY RESPONSIBLE FOR IMPLEMENTING APPROPRIATE VIRUS PROTECTION PROCEDURES
AND TOOLS AND SYSTEM AND NETWORK SECURITY MEASURES TO PREVENT UNAUTHORIZED
ACCESS TO THE SOFTWARE AND RELATED DATA. THE FOREGOING LIMITED WARRANTY AND
ASSOCIATED REMEDIES FOR THE SOFTWARE, EQUIPMENT, SERVICES AND THIRD PARTY
PRODUCTS ARE CUSTOMER'S SOLE AND EXCLUSIVE WARRANTY OF PERFORMANCE REGARDING THE
SOFTWARE, EQUIPMENT, SERVICES AND THIRD PARTY PRODUCTS AND CUSTOMER'S SOLE AND
EXCLUSIVE REMEDIES FOR BREACH OF THE FOREGOING LIMITED WARRANTY FOR THE
SOFTWARE, EQUIPMENT, SERVICES AND THIRD PARTY PRODUCTS. ALLSCRIPTS SHALL HAVE NO
LIABILITY WITH RESPECT TO ALLSCRIPTS' OBLIGATIONS UNDER THIS AGREEMENT FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES,
EVEN IF ALLSCRIPTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE,
COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR
LOSSES, PERSONAL INJURY OR PROPERTY DAMAGE. THIS EXPRESS WARRANTY IS IN LIEU OF
ALL LIABILITIES OR OBLIGATIONS OF ALLSCRIPTS
4
FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR
PERFORMANCE OF THE SOFTWARE, EQUIPMENT, SERVICES, OR THIRD PARTY PRODUCTS. IN NO
EVENT SHALL ALLSCRIPTS' LIABILITY HEREUNDER, WHETHER ARISING UNDER CONTRACT,
TORT OR WARRANTY, EXCEED THE SOFTWARE LICENSE FEES ASSOCIATED WITH THE
APPLICABLE PRODUCT PAID BY THE CUSTOMER FOR THE MOST RECENT 12 MONTH PERIOD OF
THIS AGREEMENT, OR SUCH OTHER PERIOD THAT MAY BE EXPRESSLY SET FORTH IN THE
APPLICABLE SCHEDULE.
INTELLECTUAL PROPERTY INDEMNITY
Allscripts is the owner of the Software, or has adequate rights to
license to Customer the use of the Software as herein provided. Allscripts will,
at its expense, defend against and pay any final judgment against Customer
arising out of any claim that any Software infringes a U.S. copyright or a U.S.
patent issued as of the effective date of the Payment Schedule with respect to
the Software, or misappropriates a trade secret, provided that (i) Customer
promptly notifies Allscripts in writing of such claim or action and
(ii) Allscripts has sole control of the defense and settlement of