(a) Noninfringement Warranty. Contractor represents and warrants to the best of its knowledge and belief that the Deliverables (including Custom Work Product), when properly used as contemplated herein, will not infringe or misappropriate any United States copyright, trademark, patent, or the trade secrets of any third persons. Upon being notified of such a claim, Contractor shall (i) defend through litigation or obtain through negotiation the right of Hiring Party to continue using the Deliverable; (ii) rework the Deliverable so as to make it noninfringing while preserving the original functionality, or (iii) replace the Deliverable with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy, Hiring Party may terminate all or any part of this Agreement and recover amounts paid hereunder with respect to the infringing Deliverable.
(b) No Performance Warranties. Except as specified in subsection (a) above, Contractor is providing all Services, Custom Work Product and other Deliverables hereunder strictly on an "as is" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with Specifications, reliability or functionality.
(c) Warranty Disclaimer. THE CONTRACTOR HEREBY DISCLAIMS WITH RESPECT TO ALL SERVICES, SOFTWARE, CUSTOM WORK PRODUCT AND OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Remedies & Liabilities: The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk:
(a) Remedies. Except for certain injunctive relief authorized under Section 9 ("Injunctive Relief"), Hiring Party's sole and exclusive remedies for Contractor's default hereunder shall be (i) to obtain the repair, replacement or correction of the defective services or deliverable to the extent warranted under Section 10 ("Warranties") or, if Contractor reasonably determines that such remedy is not economically or technically feasible, (ii) to obtain an equitable partial or full refund of amounts paid with respect to the defective services or deliverable.
(b) Liabilities. CONTRACTOR SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE TOTAL PORTION OF THE CONTRACT PRICE ACTUALLY PAID BY HIRING PARTY FOR THE DELIVERABLE AT ISSUE. IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Notices: Notices sent to either party shall be effective when delivered in person or transmitted by email or facsimile, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the address on the first page hereof or such other address as a party may give notice. A facsimile of this Agreement and notices generated in good form by a fax machine (as well as a photocopy thereof) shall be treated as "original" documents admissible into evidence unless a document's authenticity is genuinely placed in question.
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