TE Technology TC-48-20 - Manual (Page 6)

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2.8 Customer acknowledges that the Licensed Software, including, without limitation, TE TECH logos, trademarks and all information contained therein, is
proprietary to TE TECH, is valuable, gives a competitive advantage to TE TECH, and could not, without significant expense and difficulty, be obtained or duplicated
by others who have not been able to acquire the same through means expressly authorized in this agreement. You agree that, unless you first obtain the prior
written consent of TE TECH ,or unless required by law, you shall not communicate or disclose, directly or indirectly, to any person or firm, or use at any time, any of
the TE TECH’s proprietary information, except as provided in this Agreement. The provisions of the section, among certain others, shall survive the termination of
this Agreement for whatever reason. The Licensed Software shall be and remain the exclusive property of TE TECH.
3.
WARRANTY
3.1
Only if Customer has purchased Designated Hardware (the purchase price of which automatically includes the license fee), TE TECH warrants that the
Application Software will be in substantial conformance with the specifications in the manual pertaining thereto as of the date of shipment by TE TECH. If, within
ninety (90) days of date of shipment, it is shown that the Application Software does not meet this warranty, TE TECH will, at its option, either correct the defect or
error in the Application Software, free of charge, or make available to Customer satisfactory substitute software, or, as a last resort, return to Customer all
payments made as license fees and terminate the license with respect to the Application Software affected. TE TECH does not warrant that operation of the
Application Software will be uninterrupted or error free or that it will meet Customer’s needs. All other portions of the Licensed Software are provided “as is”
without warranty of any kind.
3.2
TE TECH warrants that the media on which the Application Software is delivered will be free from defects in material or workmanship under normal use
and service for a period of ninety (90) days from the date of delivery. If any defects are discovered in the media is discovered and reported by Customer within
ninety (90) days after delivery TE TECH shall, at no cost to Customer, upon return of same to TE TECH, replace the media and deliver (electronically) to Customer a
new and complete copy of the Licensed Software.
3.3
Any modification to the Licensed Software by the Customer without the express written consent of TE TECH shall void the warranty.
3.4
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE WHETHER
WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL
APPLY. NO WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY. NOTWITHSTANDING ANYTHING TO
THE CONTRARY HEREIN, UNLESS CUSTOMER HAS PAID TE TECH A SEPARATE LICENSE FEE THEREFOR, TE TECH MAKES NO WARRANTIES AS TO THE LICENSED
SOFTWARE, WHICH IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
4.
LIMITATION OF LIABILITY
4.1
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL TE
TECH OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR
REVENUES, LOSS OF USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF, OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF
CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF CUSTOMER’S CUSTOMERS AND
TRANSFEREES FOR SUCH DAMAGES EVEN IF TE TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2
EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, SHALL TE TECH’S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR
FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE
QUOTED CHARGES FOR THE LICENSED SOFTWARE. ANY SUCH LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE WARRANTY PERIOD AS SET FORTH IN
SECTION 3.
4.3
If TE TECH furnishes Customer with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any
system or equipment on which any such software may be installed and which is not required pursuant to this Agreement the furnishing of such advice or assistance
will not subject TE TECH to any liability, whether in contract, warranty, tort (including negligence) or otherwise.
4.4
The products (hardware and software) to be licensed or sold hereunder are not intended for use in any application specifically prohibited in writing by
TE TECH, including, without limitation, in any nuclear, chemical or weapons production facility or activity, or other activity where failure of the products could lead
directly to death, personal injury or severe physical or environmental damage. If so used, TE TECH disclaims all liability for any damages arising as a result of the
hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall
indemnify, hold harmless and defend TE TECH, its officers, directors, employees and agents against all such liability, whether based on contract, warranty, tort
(including negligence), or any other legal theory, regardless of whether TE TECH had knowledge of the possibility of such damages.
5.
INDEMNITY
5.1
Should the Application Software be held by a court to constitute patent or copyright infringement and its use is enjoined, TE TECH shall, at its expense
and option, either procure for Customer the right to continued use, or replace same with a non‐infringing product or part, or modify the Application Software so
that it becomes non‐infringing, or remove the software and refund the license charge pertaining thereto (less reasonable depredation for any period of use) and any
transportation costs separately paid by Customer. The foregoing states the entire liability of TE TECH for patent and copyright infringement by the Licensed
Software or any part thereof.
5.2
The indemnity under the preceding paragraph shall not apply to any use of Application Software in conjunction with any other product in a
combination not furnished by TE TECH as a part of this transaction. As to any such use in such combination, or any improper or unauthorized use, installation, or
operation of the Application Software, TE TECH assumes no liability whatsoever for patent and copyright infringement and Customer will hold TE TECH harmless
against any infringement claims arising there from (including, but not limited to, reasonable attorney’s fees).
6.
TERM AND TERMINATION
6.1
You may terminate the license granted hereunder at any time by destroying the Licensed Software together with all copies thereof and notifying TE
TECH in writing that all use of the Licensed Software has ceased and that same has been destroyed.
6.2
TE TECH, upon thirty (30) days’ notice, may terminate this Agreement or any license hereunder if Customer fails to perform any obligation or
undertaking to be performed by it under this Agreement or if Customer attempts to assign this Agreement without the prior written consent of TE TECH. Within
twenty (20) days after any such termination of this Agreement, Customer shall certify in writing to TE TECH that all use of the Licensed Software has ceased, and
that same has been returned or destroyed, in accordance with TE TECH’s instructions.