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<br />
<br />Verity Master Agreement _10192016f 9
<br />discontinue all use of the Software and return to Hart or destroy at Hart’s option, the Software, including Firmware (and all
<br />related Documentation (electronic and hard copy)) and all archival, backup, and other copies of Software, Firmware and
<br />Documentation, and provide certification to Hart of such return or destruction. Return or destruction may include hard drives
<br />and/or component flash drive devices.
<br />14.4. Customer Employees, Agents and Contractors. Customer will inform its employees and other agents and contractors of their
<br />obligations under this Section 14 and shall be fully responsible for any breach thereof by such personnel.
<br />15. INDEMNIFICATION
<br />15.1. Indemnity. Hart, at its own expense, will defend Customer against any claim that the Hart Hardware or Hart Proprietary
<br />Software infringes an issued United States patent, registered United States copyright, or misappropriates trade secrets protected
<br />under United States law, and shall indemnify Customer against and pay any costs, damages and reasonable attorneys' fees
<br />attributable to such claim that are finally awarded against Customer, provided Customer (a) gives Hart prompt written notice of
<br />such claims; (b) permits Hart to control the defense and settlement of the claims; and (c) provides all reasonable assistance to
<br />Hart in defending or settling the claims.
<br />15.2. Remedies. As to Hart Hardware or Hart Proprietary Software that is subject to a claim of infringement or misappropriation, Hart
<br />may (a) obtain the right of continued use of the Hart Hardware or Hart Proprietary Software for Customer or (b) replace or modify
<br />the Hart Hardware or Hart Proprietary Software to avoid the claim. If neither alternative is available on commercially reasonable
<br />terms, then, at the request of Hart, any applicable Software license and its charges will end, Customer will cease using the
<br />applicable Hart Hardware and Hart Proprietary Software, Customer will return to Hart all applicable Hart Hardware and return or
<br />destroy all copies of the applicable Hart Proprietary Software, and Customer will certify in writing to Hart that such return or
<br />destruction has been completed. Upon return or Hart’s receipt of certification of destruction, Hart will give Customer a credit for
<br />the price paid to Hart for the returned or destroyed Hart Hardware and Hart Proprietary Software, less a reasonable offset for use
<br />and obsolescence.
<br />15.3. Exclusions. Hart will not defend or indemnify Customer if any claim of infringement or misappropriation (a) is asserted by an
<br />affiliate of Customer; (b) results from Customer’s design or alteration of any Hardware or Software; (c) results from use of any
<br />Hart Hardware or Hart Proprietary Software in combination with any non-Hart product, except to the extent, if any, that such use
<br />in combination is restricted to the Verity system designed by Hart; (d) relates to Sublicensed Software or Third Party Hardware
<br />alone; or (e) arises from Customer-specified customization work undertaken by Hart or its designees in response to changes in
<br />Hart Proprietary Software or Sublicensed Software that are made in response to Customer specifications.
<br />15.4. EXCLUSIVE REMEDIES. THIS SECTION 15 STATES THE ENTIRE LIABILITY OF HART AND CUSTOMER’S SOLE AND
<br />EXCLUSIVE REMEDIES FOR INFRINGEMENT AND TRADE SECRET MISAPPROPRIATION.
<br />16. DISCLAIMERS AND LIMITATIONS OF LIABILITY
<br />16.1. Disclaimer of Warranty. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES APPLICABLE TO THE PRODUCT(S)
<br />AND/OR SERVICES SET FORTH IN SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A)
<br />THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE UNDER THIS
<br />AGREEMENT, AND (B) HART DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
<br />TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND
<br />NONINFRINGEMENT FOR ALL HARDWARE, SOFTWARE, AND SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR
<br />ASSURING AND MAINTAINING THE BACKUP OF ALL CUSTOMER DATA. UNDER NO CIRCUMSTANCES WILL HART BE
<br />LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE LOSS OF OR DAMAGE TO CUSTOMER DATA THE EXPRESS
<br />LIMITED WARRANTIES REFERENED ABOVE EXTEND SOLELY TO CUSTOMER AND DO NOT INCLUDE ANY TYPE OF
<br />ROUTINE MAINTECNANCE SERVICE OR PREVENTATIVE MAINTENANCE SERVICE. SOME STATES (OR
<br />JURISDICTIONS) DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT
<br />APPLY.
<br />16.2. Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM
<br />EXTENT PERMITTED BY APPLICABLE LAW, HART WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT,
<br />INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR FOR LOST DATA
<br />SUSTAINED OR INCURRED IN CONNECTION WITH THE HARDWARE, SOFTWARE, SERVICES, OR THIS AGREEMENT,
<br />EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION AND WHETHER
<br />OR NOT SUCH DAMAGES ARE FORESEEABLE. IN ADDITION, HART’S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES
<br />ARISING OUT OF OR RELATING TO THE HARDWARE, SOFTWARE, SERVICES, AND THIS AGREEMENT WILL IN NO
<br />EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO HART UNDER THIS AGREEMENT UNDER
<br />THE ORDER FOR THE HARDWARE, SOFTWARE OR SERVICE GIVING RISE TO THE APPLICABLE CLAIM. HART IS NOT
<br />LIABLE FOR DAMAGES CAUSED IN ANY PART BY CUSTOMER’S NEGLIGENCE OR INTENTIONAL ACTS OR, EXCEPT AS
<br />EXPRESSLY SET FORTH HEREIN, FOR ANY CLAIM AGAINST CUSTOMER OR ANYONE ELSE BY ANY THIRD PARTY.
<br />SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE EXCLUSIONS
<br />AND/OR LIMITATIONS MAY NOT APPLY TO CUSTOMER. THE PARTIES AGREE THAT THE LIABILITY AND WARRANTY
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