INDEMNIFY AND HOLD THE OTHER HARMLESS FROM AND
AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS, ACTIONS, DAMAGES, LIABILITY, COSTS,
OR EXPENSES, INCLUDING REASONABLE ATTORNEY FEES ACTUALLY INCURRED, ARISING FROM,
OUT OF, OR IN CONNECTION WITH, THE ACTS OR OMISSIONS OF SUCH INDEMNIFYING PARTY,
AND THE INDEMNIFYING PARTY'S EMPLOYEES, REPRESENTATIVES AND AGENTS, AND THE
OPERATION OF THE INDEMNIFYING PARTY'S BUSINESS, IN CONNECTION WITH SUCH
INDEMNIFYING PARTY'S PERFORMANCE OF THIS AGREEMENT.
THIS MUTUAL INDEMNITY SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THE TERM OF THIS AGREEMENT,
REGARDLESS OF THE REASON FOR, MANNER OR METHOD OF SAME.
SECTION 10.3
CALAMITIES AND DELAYS.
VENDOR SHALL
NOT BE HELD LIABLE FOR ANY LOSS, DESTRUCTION, MUTILATION OF RECORDS, OR ANY
EXPENSE, DAMAGE OR LIABILITY RESULTING FROM ANY DELAY IN PERFORMANCE OF ITS
DUTIES UNDER THIS AGREEMENT, CAUSED BY OR ATTRIBUTABLE TO FAILURE OR DESTRUCTION
OF EQUIPMENT, FIRE, HURRICANES, FLOOD, THEFT, ACT OF GOD, LABOR STRIKE, WORK
STOPPAGE OR SLOWDOWN, CIVIL OR MILITARY AUTHORITY, RIOTS, EPIDEMICS, WAR,
GOVERNMENTAL REGULATIONS, OR ANY EVENT BEYOND ITS REASONABLE CONTROL OR
OCCURRING WITHOUT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF VENDOR,
EXCEPT AS MAY BE PROVIDED IN THIS ARTICLE.
6
SECTION 10.4
LIMITATIONS OF LIABILITY.
NEITHER
PARTY'S TOTAL LIABILTY TO THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED TO
SUCH PARTY'S PERFORMANCE UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
MALFUNCTION OF SUCH PARTY'S EQUIPMENT, FAILURE OR NEGLIGENCE OF SUCH PARTY'S
EMPLOYEES AND AGENTS, OR DEFECTIVE PROGRAMS SHALL EXCEED THE TOTAL CHARGES PAID
OR PAYABLE BY CLIENT FOR SERVICES PERFORMED BY VENDOR DURING THE TERM OF THIS
AGREEMENT.
THE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND FOR VENDOR'S LIABILITY OF
ANY KIND WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER AND ANY
OTHER PERFORMANCE BY VENDOR UNDER OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED
AS SET FORTH HEREIN.
THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
VENDOR
SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTIAL, INDRECT OR CONSEQUENTIAL
DAMAGES OF ANY NATURE WHATSOEVER, SUCH AS, BUT NOT LIMITED TO, LOSS OF
ANTICIPATED PROFITS, REVENUE, DATA, INCREASED BUSINESS EXPENSES, OR OTHER
ECONOMIC LOSS, EVEN THOUGH VENDOR MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH POTENTIAL LOSS OR DAMAGE, IN CONNECTION WITH, OR ARISING OUT OF THE
EXISTENCE OF, THE FURNISHING, FUNCTIONING OR CLIENT'S USE OF ANY ITEM OF
EQUIPMENT OR SERVICES PROVIDED FOR IN THIS AGREEMENT, OR FOR THE SPECIFIC
PERFORMANCE; PROVIDED, HOWEVER, IN THE EVENT OF VENDOR'S BREACH, CLIENT SHALL
HAVE THE RIGHT TO "COVER" AS PROVIDED UNDER THE UNIFORM COMMERCIAL CODE.
SECTION 10.5
NON-DISCLOSURE
DURING THE TERM OF
THE AGREEMENT AND DURING THE TWO (2) YEAR PERIOD FOLLOWING THE EXPIRATION OR
TERMINATION OF THE TERM, REGARDLESS OF THE REASON FOR, MANNER OR METHOD OF SAME
(THE "NON-DISCLOSURE PERIOD"), CLIENT AND VENDOR SHALL RESPECTIVELY MAINTAIN THE
OTHER PARTY'S CONFIDENTIAL INFORMATION IN STRICT CONFIDENCE AND SHALL USE ITS