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DAMAGES ARE FORESEEABLE. IN ADDITION, HART'S TOTAL LIABILITY TO CLIENT FOR <br />DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE HARDWARE, SOFTWARE, <br />SERVICES, AND THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL AMOUNT <br />ACTUALLY PAID BY CLIENT TO HART UNDER THIS AGREEMENT. HART IS NOT LIABLE <br />FOR DAMAGES CAUSED IN ANY PART BY CLIENT'S NEGLIGENCE OR INTENTIONAL ACTS <br />OR FOR ANY CLAIM AGAINST CLIENT OR ANYONE ELSE BY ANY THIRD PARTY. <br />SOME STATES (OR JURISDICTIONS) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF <br />INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR <br />LIMITATION MAY NOT APPLY TO CLIENT. <br />9.4 Referrals Hart may direct Client to third parties having products or services that may be <br />of interest to Client for use in conjunction with the Equipment and Software. Notwithstanding any Hart <br />recommendation, referral, or introduction, Client will independently investigate and test non -Hart <br />products and services and will have sole responsibility for determining suitability for use of non -Hart <br />products and services. Hart has no liability with respect to claims relating to or arising from use of non - <br />Hart products and services, including, without limitation, claims arising from failure of non -Hart <br />products to provide proper time and date functionality. <br />10. INFRINGEMENT INDEMNITY <br />10.1 Indemnitv Hart, at its own expense, will defend and indemnifi- Client against claims <br />that the HVS Hardware or Hart Proprietaiv Software infringe a United States patent, copyright, or <br />misappropriate trade secrets protected under United States law, provided Client (a) gives Hart prompt <br />written notice of such claims, (b) permits Hart to control the defense and settlement of the claims, and (c) <br />provides all reasonable assistance to Hart in defending or settling the claims. <br />10.2 Remedies As to HVS Hardware or Hart Proprietaiv Software that is subject to a claim <br />of infringement or misappropriation, Hart may (a) obtain the right of continued use of the HVS Hardware <br />or Hart Proprietaiv Software for Client or (b) replace or modifi- the HVS Hardware or Hart Proprietaiv <br />Software to avoid the claim. If neither alternative is available on commercially reasonable terms, then, at <br />the request of Hart, any applicable Software license and its charges will end, Client will cease using the <br />applicable HVS Hardware and Hart Proprietaiv Software, Client will return to Hart all applicable HVS <br />Hardware and return or destroy all copies of the applicable Hart Proprietaiv Software, and Client will <br />certify in writing to Hart that such return or destruction has been completed. Upon return or Hart's <br />receipt of certification of destruction, Hart will give Client a credit for the price paid to Hart for the <br />returned or destroyed HVS Hardware and Hart Proprietaiv Software, less a reasonable offset for use and <br />obsolescence. <br />10.3 Exclusions Hart will not defend or indemnifi- Client if any claim of infringement or <br />misappropriation (a) is asserted by an affiliate of Client; (b) results from Client's design or alteration of <br />any HVS Hardware or Hart Proprietaiv Software; (c) results from use of any HVS Hardware or Hart <br />Proprietaiv Software in combination with any non -Hart product, except to the extent, if any, that such use <br />in combination is restricted to the HVS designed by Hart, (d) relates to Non -Hart Software or Non -Hart <br />Equipment alone, or (e) arises from Client - specified customization work undertaken by Hart or its <br />designees in response to changes in Hart Proprietaiv Software or Non -Hart Software that are made in <br />response to Client specifications. <br />10.4 EXCLUSIVE REMEDIES THIS SECTION 10 STATES THE ENTIRE LIABILITY <br />Page 12 of 21 <br />HVS License Agreement — Rev. 09 -2011 <br />