THIS AGREEMENT OR THE PRODUCT,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY, ITS
AFFILIATES, ITS SUBSIDIARIES, OR ITS LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY IN THOSE JURISDICTIONS.
IF
ANY CLAIM IS MADE AGAINST A PARTY, INCLUDING WITHOUT LIMITATION CLAIMS AS A
RESULT OF THE SUBSTANTIAL NON-CONFORMANCE OF THE SOFTWARE TO THE DOCUMENTATION
OR OTHERWISE, THE PARTY'S TOTAL LIABILITY FOR DAMAGES WILL BE LIMITED, IN THE
AGGREGATE, TO ITS ACTUAL DIRECT DAMAGES, AND IN ANY EVENT WILL NOT EXCEED THE
TOTAL OF ALL AMOUNTS MEDQUIST IS OBLIGATED TO PAY PSP UNDER THIS AGREEMENT.
SOME JURISDICTIONS MAY NOT ALLOW LIMITATIONS OF LIABILITY FOR CERTAIN TYPES OF
DAMAGE OR CERTAIN CLAIMS, SO SUCH LIMITATION MAY NOT APPLY IN SUCH JURISDICTION.
14.
INTELLECTUAL PROPERTY INDEMNIFICATION.
PSP WILL INDEMNIFY,
DEFEND, AND HOLD HARMLESS MEDQUIST, AND MEDQUIST'S DIRECTORS, OFFICERS,
SHAREHOLDERS, EMPLOYEES, AGENTS, AND ATTORNEYS, AND MEDQUIST'S AFFILIATES AND
THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS,
AND ATTORNEYS, AND THE END USERS, AND THE SUCCESSOR, AND ASSIGNS OF ANY OR ALL
OF THEM, FROM ALL THIRD-PARTY CLAIMS FOR INFRINGEMENT, MISAPPROPRIATION OR
VIOLATION OF COPYRIGHTS, TRADEMARKS, TRADE SECRETS, OR OTHER PROPRIETARY RIGHTS
ASSOCIATED WITH ANY PORTION OF THE PRODUCT, OR ANY OTHER MATERIAL DELIVERED
UNDER THIS AGREEMENT; PROVIDED THAT: (I) MEDQUIST PROMPTLY NOTIFIES PSP IN
WRITING OF THE CLAIM; (II) PSP HAS SOLE CONTROL OF THE DEFENSE AND ALL RELATED
SETTLEMENT NEGOTIATIONS WITH RESPECT TO THE CLAIM; PROVIDED HOWEVER, THAT
MEDQUIST HAS
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Confidential material which has been omitted and filed separately with the
Securities and Exchange Commission
10
THE RIGHT, BUT NOT THE OBLIGATION, TO PARTICIPATE IN THE DEFENSE OF ANY SUCH
CLAIM THROUGH COUNSEL OF ITS OWN CHOOSING (AT MEDQUIST'S SOLE EXPENSE), WHICH
RIGHT WILL NOT DETRACT FROM PSP'S SOLE RIGHT TO CONTROL SUCH DEFENSE; AND (III)
MEDQUIST COOPERATES FULLY TO THE EXTENT REASONABLY NECESSARY, AND EXECUTES ALL
DOCUMENTS REASONABLY NECESSARY FOR THE DEFENSE OF SUCH CLAIM. "CLAIM" WILL MEAN
ALL LOSS, LOSSES, LIABILITIES, DAMAGE, DAMAGES, CLAIMS, TAXES, AND ALL RELATED
COSTS AND EXPENSES; INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES
AND COSTS OF INVESTIGATION, LITIGATION, SETTLEMENT, JUDGMENT, INTEREST, AND
PENALTIES.
IF MEDQUIST PROVIDES PSP WITH NOTICE OF A CLAIM, MEDQUIST MAY
WITHHOLD ANY FURTHER PAYMENTS DUE TO PSP PURSUANT TO THIS AGREEMENT, AND DEPOSIT
THE SAME IN AN INTEREST-BEARING ESCROW ACCOUNT WITH A COMMERCIAL BANK.
ON THE
RESOLUTION OF ANY CLAIM, THE AMOUNTS IN ESCROW, INCLUDING ACCRUED INTEREST
THEREON, WILL BE DISTRIBUTED TO PSP AFTER DEDUCTIONS OF AMOUNTS PSP IS REQUIRED
TO PAY MEDQUIST UNDER THIS SECTION 14.
IF MEDQUIST'S OR ITS END USERS' USE OF
ANY PORTION OF THE PRODUCT OR ANY OTHER MATERIAL DELIVERED UNDER THIS AGREEMENT
IS ENJOINED IN AN ACTION BY