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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 if 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. WITHOUT RESTRICTION OF THE FOREGOING, MIDWEST
<br /> TAPE'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL
<br /> FEES PAID BY LIBRARY TO MIDWEST TAPE DURING THE TWELVE MONTHS PRIOR TO
<br /> THE DATE THAT ANY CLAIM ALLEGEDLY AROSE.
<br /> Hoopla shall maintain the insurance set forth in Appendix 4 during term of Agreement.
<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 /> 9/2022US — PPU/OCOU Page 7
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