Telect MIX 56 - Manual (Page 4)

iv Telect, Inc. 122188-10 A0
Limitation of Warranty
a. Telect does not warrant that the Software will be uninterrupted or error-free in all circumstances. Licensee’s sole
and exclusive remedy for breach of the warranty is that Telect will make a reasonable effort to correct any document-
ed nonconformity reported in writing to Telect during the Product warranty period.
b. Telect is not responsible for any defect or noncompliance Software documentation not reported during the Product
warranty period or any defect or noncompliance Software documentation after the Software has been modified with-
out the consent of Telect, or otherwise misused, or damaged.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAWS, TELECT SHALL HAVE NO LIABILITY TO LICENSEE OR ANY THIRD PARTY
FOR THE SOFTWARE OR PROVISIONS OF OR FAILURE TO PROVIDE SUPPORT SERVICES UNDER THIS
AGREEMENT, INCLUDING ANY LIABILITY FOR NEGLIGENCE; TELECT MAKES AND LICENSEE RE-
CEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS
AGREEMENT OR IN ANY OTHER COMMUNICATION; AND TELECT SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONIN-
FRINGEMENT.
4. Protection of Proprietary Rights
Licensee acknowledges that the Software contains information that is proprietary to Telect or its licensors, and that all
such information is of a confidential trade secret nature. Licensee will take all necessary steps to protect such propri-
etary rights and to maintain the confidentiality thereof, and agrees not to disclose any information regarding the Soft-
ware to any third party except Licensee’s employees, agents and contractors who have a need to know and who are
bound in writing to preserve the confidentiality thereof. Licensee agrees that its contractors shall have access to the
Software only at Licensee’s location. Licensee further agrees that its contractors shall be deemed agents of Licensee
and therefore Licensee shall have the same liability for its contractors as Licensee has for its employees and agents.
Licensee will promptly notify Telect of any unauthorized use of the Software. Each party’s obligations with respect to
confidentiality shall survive the termination of this Agreement. Each party’s confidential information shall not in-
clude information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b)
was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without re-
striction on disclosure; or (d) is independently developed by the other party without breaching any confidentiality ob-
ligations.
5. Limitation of Liability; Exclusion of Consequential Damages
The maximum cumulative liability of Telect to Licensee for all claims relating to the Software and any Services ren-
dered hereunder, in warranty, contract, tort, or otherwise, shall not exceed the total amount of the price paid for Prod-
uct by Licensee.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, UNDER THIS SECTION
OR OTHERWISE, SHALL TELECT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDI-
RECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAG-
ES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,
OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF USE OF OR INABILITY TO USE SOFTWARE OR
TELECT’S FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF TELECT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION AND LIMITATION OF LIABILITY APPLIES IN ALL
STATES/JURISDICTIONS WHERE PERMITTED BY LAW.
The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effec-
tiveness of other remedies.