in
Section 7.1. Subject to Sections 9.3 and 9.4 above, with respect to any such
Goods during the term of the MMRU Agreement, Customer's sole remedy for any
breach of the limited warranty set forth in Section 9.1.2 is P2O's service of
the subject Goods as set forth in the MMRU Agreement, at Customer's expense, and
at the parts and labor rates set forth in the MMRU. THIS SECTION SETS FORTH
CUSTOMER's SOLE REMEDY AND P2O'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED
WARRANTIES SET FORTH IN SECTION 9.1.
10.LIMITATIONS OF LIABILITY
10.1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR OBLIGATIONS
TO MAKE PAYMENT UNDER THIS CONTRACT, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR
LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS,
INCLUDING ANY BREACH OF SECTION 15.1 BELOW, IN NO EVENT SHALL EITHER PARTY OR
THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR
DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS CONTRACT,
REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE
OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR
EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED,
AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
7
10.2. MAXIMUM LIABILITY FOR DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT
UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF
CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF
INTELLECTUAL PROPERTY RIGHTS, INCLUDING WITHOUT LIMITATION BREACH OF THE LICENSE
RESTRICTIONS, IN NO EVENT SHALL EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF
OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF (i) THE
AMOUNTS PAID OR TO BE PAID FOR PROCESSORS FOR WHICH A PURCHASE ORDER HAS BEEN
DELIVERED AND ACCEPTED BUT NOT YET FILLED AT THE TIME OF THE EVENT GIVING RISE
TO THE CLAIM PLUS (ii) AN AMOUNT EQUAL TO ONE-HALF (1/2) THE AMOUNT DETERMINED
PURSUANT TO PRECEDING CLAUSE (i).
10.3. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
EXCEPT FOR RESULTS RELATED TO MINIMUM PERFORMANCE LEVELS OF PROCESSORS SET FORTH
IN SECTION 9.1.2 AND FURTHER DESCRIBED IN THE MMRU AGREEMENT, CUSTOMER ASSUMES
ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE
PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL
EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN
STATEMENTS MADE BY P2O, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE
USE OF THE GOODS.
11.INDEMNIFICATION; INSURANCE
11.1. Indemnification. Subject to the terms and conditions of this Contract,
Customer (as "Indemnifying Party") shall indemnify, defend and hold harmless P2O
and its officers, directors, employees, agents, Affiliates, successors and
permitted assigns (collectively, "Indemnified Party") against any and all
losses, damages, liabilities, deficiencies, claims, actions, judgments,
settlements, interest, awards, penalties, fines, costs, or