SELLER MAKES
NO WARRANTY AS TO SUCH
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MANAGEMENT SERVICES OR OPERATING SERVICES WHATSOEVER.
THE ABOVE PARTS WARRANTY
AND LIMITED WARRANTY ARE IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, AND
SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, INTELLECTUAL PROPERTY INFRINGEMENT, OR ARISING OUT OF
COURSE OF CONDUCT OR OTHER TRADE CUSTOM OR USAGE, WITH RESPECT TO THE SYSTEM,
SELLER PARTS AND SOFTWARE, THIRD PARTY PARTS AND SOFTWARE OR ANY OTHER
DELIVERABLES PROVIDED HEREUNDER.
9.3.2.
EXCEPT FOR ITS SPECIFIC INDEMNIFICATION OBLIGATIONS UNDER SECTIONS
12.2 AND 12.3 SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY DAMAGES IN CONNECTION
WITH THE SALE, INSTALLATION OR USE OF THE SYSTEM UNDER THIS AGREEMENT, WHETHER
ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE UNDER THE STATEMENT OF
WORK IN EXCESS OF THE SYSTEM PRICE FOR THE SYSTEM PROVIDED PAID TO SELLER AND
RETAINED BY SELLER UNDER THE STATEMENT OF WORK GIVING RISE TO THE CLAIM.
9.3.3.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER'S
AGGREGATE ENTIRE LIABILITY TO THE BUYER FOR MANAGEMENT SERVICES OR OPERATING
SERVICES, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO EVENT EXCEED TOTAL FEES
PAID TO SELLER AND RETAINED BY SELLER FOR THE SPECIFIC MANAGEMENT SERVICE OR
OPERATING SERVICE GIVING RISE TO THE CLAIM.
9.3.4.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NO PARTY SHALL BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS
AGREEMENT, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE SYSTEM, THE
RESULTS GENERATED FROM THE USE OF THE SYSTEM, THE QUALITY OF THE SYSTEM, ANY
DEFECT IN THE SYSTEM, FAILURE OF THE SYSTEM TO PERFORM AS REPRESENTED OR
EXPECTED, MANAGEMENT SERVICES, THE USE OR INABILITY TO USE RESULTS OF MANAGEMENT
SERVICES, OPERATING SERVICEES, ANY TRANSACTIONS RESULTING FROM THIS AGREEMENT,
LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY
OTHER CAUSE WHATSOEVER.
9.3.5.
THE PARTIES FURTHER AGREE THAT EACH AND EVERY PROVISION OF THIS
AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES
OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT OF
ANY OTHER PROVISION SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK
ALLOCATION BETWEEN THE PARTIES AND SHALL BE SEPARATELY ENFORCED.
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9.3.6.
THE PARTIES HEREBY AGREE THAT, TO THE EXTENT ANY DELIVERABLE
HEREUNDER IS USED FOR THE PURPOSE OF GENERATING OUTPUT USED IN COMPLYING WITH
GOVERNMENTAL LAWS AND REGULATIONS (INCLUDING TAX LAWS AND REGULATIONS), BUYER
SHALL ASSUME ALL RESPONSIBILITY FOR COMPLIANCE WITH ANY SUCH GOVERNMENTAL LAWS
AND REGULATIONS.
9.4.
The rights and obligations of the parties under this Section 9
shall survive any termination of this Agreement.
10.
CHANGES
10.1.
No additions, changes or modifications to any of Statement of Work
by either party (each "Changes") will be considered by the other party unless
such proposed Changes are first submitted in writing to the other party and
shall not have an