10. LIMITATION OF LIABILITY.
notwithstanding anything in this agreement to the contrary, cynomatic is not liable, whether based in contract (including fundamental breach), warranty, tort (including negligence), strict liability, indemnity or any other legal or equitable theory, for: loss of use, revenue, savings, profit, interest, goodwill or opportunity, costs of capital, costs of replacement or substitute use or performance, loss of information and data, loss or damage to property or equipment, loss of power, voltage irregularities or frequency fluctuation, claims arising from buyer’s third party contracts, or for any type of indirect, special, liquidated, punitive, exemplary, collateral, incidental or consequential damages, or for any other loss or cost of a similar type. cynomatic’ maximum liability under this agreement is the actual purchase price received by cynomatic for the product that gave rise to the claim. the limitations of liability in this agreement represent the agreed and bargained for understanding of the parties. buyer agrees that the exclusions and limitations in this article 10 will prevail over any conflicting terms and conditions in this agreement and must be given full force and effect, whether or not any or all such remedies are determined to have failed of their essential purpose. these limitations of liability are effective even if cynomatic has been advised by buyer of the possibility of such damages. the waivers and disclaimers of liability, releases from liability and limitations on liability expressed in this article 10 extend to cynomatic’ affiliates, partners, principals, shareholders, directors, officers, employees, suppliers, agents, and successors and assigns.
11. PATENT AND COPYRIGHT INFRINGEMENT.
Cynomatic will, at its option and expense, defend or settle any suit or proceeding brought against Buyer based on an allegation that any Product or use thereof for its intended purpose constitutes an infringement of any Patent Cooperation Treaty country member’s patent or misappropriation of a third party’s trade secret or copyright in the country where the Product is delivered by Cynomatic. Buyer will promptly give Cynomatic written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. Cynomatic shall have the full and exclusive authority to defend and settle such claim(s) and will pay the damages and costs awarded in any suit or proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to Cynomatic and shall not enter into a settlement without Cynomatic’ consent. Cynomatic is not responsible for any settlement made without its prior written consent. If the Product, or any part thereof, as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is enjoined, Cynomatic will, at its option and expense, either: (i) procure for Buyer the right to continue using said Product; (ii) replace it with substantially equivalent no infringing Product; or (iii) modify the Product so it is non-infringing.
Cynomatic will have no duty or obligation under this Article 11 if the Product is: (i) supplied according to Buyer’s design or instructions and compliance therewith has caused Cynomatic to deviate from its normal course of performance; (ii) modified by Buyer or its contractors after delivery; or (iii) combined by Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason of such design, instruction, modification or combination, a suit or proceeding is brought against Cynomatic, Buyer must protect Cynomatic in the same manner and to the same extent that Cynomatic has agreed to protect Buyer under this Article 11.
This article 11 is an exclusive statement of cynomatic’ duties and buyer’s remedies relating to patents, trade secrets and copyrights, and direct or contributory infringement thereof.