THE
LICENSED M*MODAL PRODUCT WITH A FUNCTIONAL EQUIVALENT, OR (C) RETURN TO CLIENT
ANY AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT PRIOR TO AND DURING THE WARRANTY
PERIOD SPECIFICALLY FOR SUCH LICENSED M*MODAL PRODUCT, AND, IF M*MODAL SO ELECTS
UPON RETURN OF SUCH AMOUNTS, TO RIGHTFULLY TERMINATE THIS AGREEMENT AS IT
RELATED TO SUCH LICENSED M*MODAL PRODUCT. THE REMEDY FOR BREACH OF THE ABOVE
WARRANTY SHALL BE LIMITED TO SAID CORRECTION, REPLACEMENT OR REPAYMENT AS
PROVIDED HEREIN. OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT OR ANY
SCHEDULE OR EXHIBIT TO THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY
LAW, M*MODAL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO THE LICENSED
TECHNOLOGY (OR ANY PORTION THEREOF) OR ANY OTHER ITEMS PROVIDED IN CONNECTION
WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT THE LICENSED TECHNOLOGY
(OR ANY PORTION THEREOF), INCLUDING, WITHOUT LIMITATION, ANY LICENSED M*MODAL
PRODUCT, WILL MEET CLIENT'S REQUIREMENTS, AND M*MODAL EXPRESSLY DISCLAIMS THE
IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OF TITLE OR NONINFRINGEMENT.
c.
LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY DISCLAIMS ANY AND
ALL LIABILITY TO THE OTHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR
OTHER THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INFORMATION, BUSINESS INTERRUPTION, AND PERSONAL INJURY) ARISING UNDER
THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE SERVICES, PRODUCTS (OR ANY
PORTION THEREOF). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ALONE
(NOT M*MODAL) ASSUMES THE RISK FOR ANY HARM OR DAMAGE TO CLIENT PROPERTY AS A
RESULT OF CLIENT'S USE OF ANY SERVICES OR PRODUCTS (OR ANY PORTION THEREOF) OR
M*MODAL'S CONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY HARM OR
DAMAGE NECESSITATING REPAIR, EVEN IF M*MODAL HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH HARM OR DAMAGE. IN NO EVENT SHALL EITHER PARTY'S LIABILITY TO THE OTHER
EXCEED THE GREATER OF $400,000.00 OR THE TOTAL AMOUNTS PAID OR DUE TO BE PAID TO
M*MODAL BY CLIENT DURING THE THEN-CURRENT TERM OF THIS AGREEMENT.
Notwithstanding anything to the contrary in this Agreement, the limitations of
liability set forth in this paragraph 8.c shall not apply to (i) either Party's
willful misconduct, (ii) any breach by either Party (including, without
limitation, such Party's agents or independent contractors, as applicable) of
the confidentiality obligations under this Agreement or of any obligation to
protect the other Party's Intellectual Property Rights, including without
limitation, those set forth in section 7 (Confidentiality; Intellectual
Property; Dictating Physicians Model Set), above, and those set forth in any
License Grant/Restrictions Schedule attached to these Terms and Conditions, and
(iii) either Party's indemnification obligations set forth in section 9
(Indemnification), below.
9.
Indemnification
a.
M*Modal Indemnification.
i.
Intellectual Property: M*Modal agrees to defend, indemnify and hold harmless
Client with respect to damages, costs and expenses (including, without
limitation, reasonable attorney fees and litigation costs) incurred by Client as
a result of any claim, demand, suit, judgment, legal action, request