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During the Term, Midwest Tape will use reasonable efforts to provide continuous service.
<br />Permissible down time includes periodic unavailability due to matters such as: maintenance of
<br />the server(s); installation or testing of software, public or private telecommunications services, or
<br />internet nodes or facilities; and failure of equipment or services outside its control. Scheduled
<br />down time will occur periodically and at times designed, in Midwest Tape's sole discretion, to
<br />minimize inconvenience to hoopla users.
<br />6. MISCELLANEOUS.
<br />6.1 Indemnities. Each Party ("Indemnifying Party") agrees to defend, indemnify, and hold
<br />harmless the other Party and its parents, subsidiaries, and Service Partners from and against any
<br />and all third -party claims, demands, suits, legal proceedings, and causes of action that arise out
<br />of or relate to any breach by the Indemnifying Party of any of its representations and warranties
<br />as stated in this Agreement (collectively, "Indemnifiable Claims') or the Indemnifying Party's gross
<br />negligence or willful misconduct in performance of its obligations under this Agreement, including
<br />but not limited to all damages, costs, expenses, reasonable attorneys' fees, judgments, and
<br />settlements resulting from such Indemnifiable Claims; provided, however, that no Indemnifiable
<br />Claim may be settled without the express written consent of the Indemnifying Party.
<br />6.2 Indemnity Process. The Party seeking indemnification must provide prompt written
<br />notice to the Indemnifying Party of any Indemnifiable Claim for which indemnification will be
<br />sought. The Indemnifying Party may elect to control the defense and settlement of any
<br />Indemnifiable Claims with counsel of its choosing. The Party seeking indemnification will
<br />cooperate with the Indemnifying Party's defense against the Indemnifiable Claims. If any
<br />Indemnifiable Claim is covered in part but not entirely by a Party's indemnification obligation
<br />hereunder, the Indemnifying Party will only be responsible for costs to the extent attributable to
<br />the covered portion.
<br />6.3 DISCLAIMER OF WARRANTIES. MIDWEST TAPE MAKES NO WARRANTIES OF ANY
<br />KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
<br />WARRANTY OF MERCHANTABILITY, NON -INFRINGEMENT, OR FITNESS FOR A
<br />PARTICULAR PURPOSE.
<br />6.4 LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN
<br />THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
<br />INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES,
<br />INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST BUSINESS OPPORTUNITY,
<br />ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE
<br />FORESEEABLE AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF
<br />THE POSSIBILITY THEREOF.
<br />6.5 Confidential Information. "Confidential Information" means any non-public information
<br />of either Party that is disclosed to the other Party in connection with this Agreement either directly
<br />or indirectly, in writing, orally, electronically, or by inspection of tangible objects, and that is either:
<br />(a) designated in writing as "Confidential" at the time of disclosure or within five (5) days thereafter;
<br />or (b) confidential by its very nature or that the receiving Party reasonably should know to be
<br />confidential. Confidential Information includes, without limitation, the terms of this Agreement, any
<br />and all non-public business plans, customer information, pricing, contract terms, available content
<br />and sales, marketing and/or finances of the disclosing Party. Each Party agrees to hold the
<br />Confidential Information of the other Party in confidence and to refrain from disclosing such
<br />Confidential Information to any third party, except: (i) to the extent required to be disclosed
<br />9/2022US - PPU/0C0U Page 7
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