11 Limitation of Liability IN NO EVENT, REGARDLESS OF THE SOURCE OF HYDROLICO'S LIABILITY, SHALL HYDROLICO BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFITS OR LOSS OF USE, REGARDLESS OF FAULT OR CAUSE, EVEN IF HYDROLICO IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL HYDROLICO BE LIABLE TO THE CUSTOMER FOR ANY TOTAL AMOUNT EXCEEDING THE PURCHASE PRICE OF THE PRODUCT(S) FOR WHICH A CLAIM IS MADE AS WELL AS DELIVERY COSTS, IF APPLICABLE. THE CUSTOMER WAIVES ANY COMPENSATION AGAINST PAYMENTS DUE ON HIS ORDERS. THE CUSTOMER ALSO WAIVES HIS RIGHT TO THE DEFENCE OF NON-PERFORMANCE. THE PROVISIONS OF THIS SECTION DISTRIBUTE THE RISKS BETWEEN HYDROLICO AND THE CUSTOMER. HYDROLICO'S PRICES REFLECT THIS DISTRIBUTION OF RISKS AND, WITHOUT THIS DISTRIBUTION AND LIMITATION OF LIABILITY, HYDROLICO WOULD NOT HAVE CONCLUDED ANY AGREEMENT WITH THE CUSTOMER FOR THE SALE OF PRODUCTS. THE CONDITIONS IN THIS SECTION WILL ALSO APPLY TO ANY SUPPLY CONTRACT AND ANY SUPPLY PLAN BETWEEN HYDROLICO AND THE CUSTOMER WITH NECESSARY ADJUSTMENTS. 12 Intellectual Property Hydrolico's exclusive liability for the violation of patents, trademarks, copyrights, trade dress, trade secrets, or similar rights, and the Customer's exclusive remedy for such infringement will be as follows: Hydrolico shall defend, indemnify and hold harmless the Customer, including retaining legal counsel chosen at Hydrolico’s discretion, with respect to any legal proceedings brought against the Customer by a third party for infringement of patents, trademarks, copyrights, trade dress, and trade secrets (“Intellectual Property Rights”) resulting solely from the sale by Hydrolico of Products designed and manufactured solely by Hydrolico. The Customer must cooperate fully with Hydrolico in the defense and must not take any position unfavourable to Hydrolico's defense against such action. The foregoing commitment does not apply unless Hydrolico has been informed in writing and in detail by the Customer as soon as possible of any infringement claim and has been given the opportunity to consent and defend them. Hydrolico will have the right to resolve any claim in the manner agreed between Hydrolico and the Customer. Notwithstanding the foregoing, Hydrolico shall have no obligation to def end or indemnify the Customer in the event of infringement claims based on: (i) information or designs provided or specified in whole or in part by the Customer; (ii) offences resulting from the amendment; (iii) a combination or the use of any Product in a system; or (iv) Products that are not manufactured solely by Hydrolico. Under these Terms, to the extent that any product supplied is manufactured in accordance with the drawings, samples, manufacturing specifications, or other information or content provided by the customer, the customer must indemnify and hold Hydrolico harmless from all damages, costs, and expenses resulting from a claim that said product manufactured by Hydrolico under the direction and design of the Customer, in whole or in part, or the use of it infringes any foreign or national patent right. The Customer agrees to undertake the defense of any such claim against Hydrolico at its own expense or to reimburse Hydrolico for its defense costs and expenses, including, without limitation, all reasonable extrajudicial fees, costs, and disbursements, incurred as a result of any such claim or claims, in addition to any other obligations of the Customer as set forth herein. Such a lawsuit can only be resolved with the agreement of Hydrolico.
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