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INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR
<br /> SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING
<br /> ALL CONTENT GENERATED THROUGH USE THEREOF.
<br /> c. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error
<br /> or other defect for which Innovative is solely responsible, Innovative will, at its option, either(i) correct or repair the
<br /> Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the
<br /> Software, prorated for the period commencing on the date the error or defect was reported by Client to Innovative
<br /> and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or
<br /> remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party
<br /> other than Innovative, or used in a manner for which the Software is not designed or intended.
<br /> 6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
<br /> EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL,
<br /> INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER,
<br /> EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE
<br /> OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
<br /> DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
<br /> THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
<br /> A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
<br /> OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
<br /> SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
<br /> AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE
<br /> WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
<br /> 7. Indemnification.
<br /> a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software,
<br /> as delivered to Client by Innovative, directly infringes such third party's U.S. copyright or U.S. patent, Innovative will
<br /> defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action
<br /> and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from
<br /> all damages and out-of-pocket costs(including reasonable attorneys'fees)finally awarded by a court of competent
<br /> jurisdiction in connection with any such legal action,or agreed to by Innovative in a settlement. Innovative will control
<br /> all aspects of the defense and conduct the defense and any settlement negotiations in any such third-party legal
<br /> action. This indemnification is limited to the Software in the form delivered to Client and does not cover claims
<br /> arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y)
<br /> use of the Software in combination with other software or items not provided by Innovative, or (z) third party
<br /> modifications (including addition of source code)to the Software.
<br /> b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the
<br /> Software by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the
<br /> Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional
<br /> charge to Client with a substantially similar, non-infringing product, which will then be subject to the provisions of
<br /> this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the
<br /> infringing component of the Software, prorated for the period Client's use of the Software is enjoined. None of the
<br /> above warranties or remedies will apply with respect to any element of the Software that has been modified by any
<br /> party other than Innovative, or used in a manner for which the Software is not designed or intended. This Section
<br /> states Innovative's entire liability and Client's exclusive remedies for infringement of intellectual property rights of
<br /> any kind.
<br /> 8. Confidentiality.
<br /> a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications
<br /> and other information pertaining to the Software, and/or Innovative's business interests or activities, product pricing,
<br /> financial information, methods of operation or customers that are disclosed by any party to Client in the course of
<br /> performing this Agreement or any ensuing business arrangement are the confidential and proprietary information
<br /> of Innovative. Innovative acknowledges that Client Data and other proprietary Client materials are the confidential
<br /> information of Client. The information and materials described in the preceding sentences is referred to herein as
<br /> "Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not include
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