1. WARRANTY; DISCLAIMER.
1.1 General Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SOL-TI PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) SOLTI AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
1.2 Special Disclaimer. Customer acknowledges and agrees the Sol-ti Products require refrigeration and thus have a short shelf life (relative to shelf stable) such that if not appropriately managed then Sol-ti cannot warranty or guarantee the Sol-ti Products in any many whatsoever express or implied and expressly waives any and all claims including product liability and the like.
2. INDEMNITY.
2.1 By Sol-ti. If an action is instituted by a third party against Customer based upon a claim the Sol-ti Products, as delivered, infringes any third party’s intellectual property rights, Sol-ti shall defend such action at its own expense on behalf of Customer and shall pay damages specifically attributable to such claim which are finally awarded against Customer or paid in settlement. If any portion of the Sol-ti Products becomes, or in Sol-ti’s determination is likely to be become, the subject of a claim of infringement, Sol-ti may, at its option and expense (a) procure for Customer the right to continue using the Sol-ti Products, (b) replace or modify the Sol-ti Service so it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Sol-ti Products and refund any amounts previously paid for the Sol-ti Products attributable to the remainder of the thencurrent term. This Section sets forth the entire obligation of Sol-ti and the exclusive remedy of Customer against Solti for any claim that the Sol-ti Products infringe a third party’s intellectual property rights.
2.2 By Customer. If any action is instituted by a third party against Sol-ti, its affiliates, employees, officers, directors, agents, or successors or permitted assigns based upon a claim that (a) Customer violates any federal or state laws, rules or regulations, (b) Customer has breached this Agreement, or (c) has arisen from Customer’s fraud, negligence or willful misconduct, Customer will defend such action at its own expense on behalf of Sol-ti and shall pay damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) specifically attributable to such claim which are finally awarded against such person/entity or paid in settlement. This subsection states the sole and exclusive remedy of Sol-ti and the entire liability of Customer for the claims and actions described herein.
2.3 Procedure. Any Party seeking to be indemnified under the provision of this Section Error! Reference source not found. (“Indemnified Party”) must (a) promptly notify the other Party (“Indemnifying Party”) of any third party claim, suit, or action for which it is seeking an indemnity hereunder (“Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim; provided, however, that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written consent if the settlement requires the Indemnified Party to take any action, refrain from taking any action, or admit any liability.
3. LIMITATION OF LIABILITY AND INDEMNIFICATION OBLIGATIONS. EXCEPT AS SET FORTH IN THIS SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SOL-TI OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL SOL-TI’S AGGREGATE, CUMULATIVE LIABILITY OR INDEMNIFICATION OBLIGATIONS IN ANY WAY RELATING TO THIS AGREEMENT EXCEED $100. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.