NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON
CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL,
PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST PROFITS, LOSS OF
BUSINESS, OR OTHER ECONOMIC DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY, AS
A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, INCLUDING
ANY FAILURE OF PERFORMANCE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY
LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY
THEREOF.
9.3
MAXIMUM DAMAGES ALLOWED.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, AND FOR ANY REASON, INCLUDING BREACH OF ANY DUTY IMPOSED BY THIS
AGREEMENT OR INDEPENDENT OF THIS AGREEMENT, AND REGARDLESS OF ANY CLAIM IN
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, METAVANTE'S TOTAL, AGGREGATE
LIABILITY UNDER THIS AGREEMENT SHALL IN NO CIRCUMSTANCE EXCEED PAYMENTS MADE TO
METAVANTE BY CUSTOMER FOR THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE
ACT OR EVENT GIVING RISE TO SUCH CLAIM.
NO SUCH LIMITATION SHALL APPLY WITH
RESPECT TO METAVANTE'S WILLFUL MISCONDUCT.
9.4
STATUTE OF LIMITATIONS.
NO LAWSUIT OR OTHER ACTION MAY BE BROUGHT BY
EITHER PARTY HERETO, OR ON ANY CLAIM OR CONTROVERSY BASED UPON OR ARISING IN ANY
WAY OUT OF THIS AGREEMENT, AFTER ONE (1) YEAR FROM THE DATE ON WHICH THE CAUSE
OF ACTION AROSE REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF ACTION, WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE; PROVIDED, HOWEVER, THE
FOREGOING LIMITATION SHALL NOT APPLY TO THE COLLECTION OF ANY AMOUNTS DUE
METAVANTE UNDER THIS AGREEMENT.
9.5
TORT CLAIM WAIVER.
IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER
PROVISION OF THIS ARTICLE 9, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHT TO RECOVER FROM THE OTHER PARTY, AND CUSTOMER
WAIVES ANY RIGHT TO RECOVER FROM ANY ELIGIBLE PROVIDER, ANY ECONOMIC LOSSES OR
DAMAGES IN ANY ACTION BROUGHT UNDER TORT THEORIES, INCLUDING, MISREPRESENTATION,
NEGLIGENCE AND/OR STRICT LIABILITY, AND/OR TORT CLAIMS RELATING TO THE QUALITY
OR PERFORMANCE OF ANY PRODUCTS OR SERVICES PROVIDED BY METAVANTE.
FOR PURPOSES
OF THIS WAIVER, ECONOMIC LOSSES AND DAMAGES INCLUDE MONETARY LOSSES OR DAMAGES
CAUSED BY A DEFECTIVE PRODUCT OR SERVICE EXCEPT PERSONAL INJURY OR DAMAGE TO
OTHER TANGIBLE PROPERTY.
EVEN IF REMEDIES PROVIDED UNDER THIS AGREEMENT SHALL
BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE, NEITHER PARTY SHALL HAVE
ANY LIABILITY TO THE OTHER PARTY UNDER TORT THEORIES FOR ECONOMIC LOSSES OR
DAMAGES.
10
9.6
LIQUIDATED DAMAGES.
CUSTOMER ACKNOWLEDGES THAT METAVANTE SHALL
SUFFER A MATERIAL ADVERSE IMPACT ON ITS BUSINESS IF THIS AGREEMENT IS TERMINATED
PRIOR TO EXPIRATION OF THE TERM, AND THAT THE RESULTING DAMAGES MAY NOT BE
SUSCEPTIBLE OF PRECISE DETERMINATION.
CUSTOMER ACKNOWLEDGES THAT THE
TERMINATION FEE IS A REASONABLE APPROXIMATION OF SUCH DAMAGES AND SHALL BE
DEEMED TO BE LIQUIDATED DAMAGES AND NOT A PENALTY.
9.7
ESSENTIAL ELEMENTS.
CUSTOMER AND METAVANTE ACKNOWLEDGE AND AGREE
THAT THE LIMITATIONS CONTAINED IN THIS ARTICLE 9