MERChANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE. OMNILINk ShALL hAvE NO LIABILITY WhATSOEvER AS A RESULT OF
ThE DEvICE(S) BEING LOCATED IN AN AREA NOT COvERED BY APPROPRIATE
WIRELESS COvERAGE, OR IF ThE DEvICE FAILS TO ESTABLISh A CONNECTION
WITh TRACkING PLAN ChECk-IN SERvICES, OR SERvICES ARE DISABLED DUE TO
ANY NETWORk RELATED ISSUES.
9.4 DISCLAIMER OF WARRANTIES. ThE MANUFACTURER’S WARRANTY PASSED
ON BY OMNILINk TO YOU, IF ANY, ShALL BE IN LIEU OF ANY OThER WARRANTY,
ExPRESS OR IMPLIED, INCLUDING, WIThOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERChANTABILITY, NONINFRINGEMENT OF ThIRD PARTY RIGhTS OR FITNESS
FOR A PARTICULAR PURPOSE.
10. INDEMNITY
10.1 Indemnity. Omnilink agrees, at its own expense, to defend or, at its option, to
settle, any claim or action brought against You to the extent it is based on a claim that
the Devices and/or Tracking Plan Check-In services directly infringe any United States
patent, copyright or trademark of a third party, and Omnilink will indemnify and hold You
harmless from and against any losses, damages, and expenses (including reasonable
attorneys’ fees) that are attributable to such claim or action and are assessed against
You in a final judgment. Omnilink shall have the foregoing obligation only if You provide
Omnilink with: (i) a prompt written request for indemnification and defense in such claim
or action; (ii) sole control and authority over the defense and settlement thereof; and,
(iii) all available information, assistance, and authority reasonably necessary to settle
and defend any such claim or action. Omnilink shall not be responsible and shall not
compensate You for any attorneys’ fees or other expenses or costs that you incur before
your request for indemnification and defense.
10.2 Limited Remedies. If any Device and/or the Tracking Plan Check-In service
becomes, or in Omnilink’s opinion are likely to become, the subject of an infringement
claim or action, Omnilink may, at its option and in its sole discretion: (i) procure, at no
cost to you, the right for you to continue using the Device and/or the Tracking Plan
Check-In service; (ii) replace or modify the Device and/or the Tracking Plan Check-In
service to render them non-infringing, provided there is no material loss of functionality;
or, (iii) if, in Omnilink’s reasonable opinion, neither (i) nor (ii) above is commercially
feasible, terminate the Agreement. The foregoing provisions of this Section 10.2 state
Omnilink’s sole obligation and your exclusive remedy in the event any claim or action for
infringement is commenced or is likely to be commenced.
10.3 Exclusions; Customer Indemnification. Omnilink will have no obligation or liability
under this Section 10 for any claim or action: (i) relating to modifications to the Device
and/or the Tracking Plan Check-In service by a person or entity other than Omnilink or
its third-party licensors; (ii) relating to the combination or use of the Device and/or the
Tracking Plan Check-In service with other products, processes, or materials not supplied
by Omnilink hereunder; (iii) where you, Sub-Account holders or Monitored Users continue
allegedly infringing activities after being notified thereof or after being provided with
modifications that would have avoided the alleged infringement; or, (iv) where use of the
Device and/or the Tracking Plan Check-In service is not in accordance with the terms of
this Agreement. You agree to indemnify and hold Omnilink harmless from and against
all losses, damages and expenses, including reasonable attorneys’ fees, in connection
with any claims brought against Omnilink arising out of any of the conditions described in
clauses (i) through (iv) above.
10.4 Customer Indemnification. Except for claims covered by Omnilink’s indemnification
obligation in Section 10.3, You agree to defend, indemnify and hold Omnilink and its
officers, directors, shareholders, employees, suppliers and re-sellers, including but not
limited to GTx Corp, and Aetrex Worldwide, Inc. (collectively, the “Indemnified Parties”)
harmless from and against all losses, damages and expenses, including reasonable
attorneys’ fees, in connection with any claims against the Indemnified Parties in any way
arising out of or related to: (i) Your, a Sub-Account holder or a Monitored User’s use of
a Device or the Tracking Plan Check-In service, including claims based on Your acts or
omissions or acts or omissions of Sub-Account holders or Monitored Users; (ii) any acts
of any Monitored Users wearing a Device, including claims for personal, injury property
damage or death; or (iii) Your, a Sub-Account holder’s or a Monitored User’s negligence
or willful misconduct. In addition, You agree to indemnify and hold the Indemnified Parties
harmless from and against all losses, damages and expenses, including reasonable
attorneys’ fees, in connection with any claims brought by Monitored Users against the
Indemnified Parties, individually or together. You shall have the foregoing obligation only
if one of all of the Indemnified Parties provides You with: (i) a prompt written request for
indemnification and defense in such claim or action; (ii) sole control of the defense and
settlement thereof; and, (iii) all available information, assistance and authority reasonably
necessary to settle and defend any such claim or action.
11. LIMITATION OF LIABILITY
IN NO EvENT WILL OMNILINk OR ITS SUPPLIERS OR LICENSORS OR RE-SELLERS,
INCLUDING BUT NOT LIMITED TO GTx CORP, AND AETREx WORLDWIDE, INC.
TOTAL, AGGREGATE LIABILITY ARISING FROM OR RELATED TO ThIS AGREEMENT
(INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACh OF CONTRACT,
MISREPRESENTATION, AND OThER CONTRACT OR TORT CLAIMS), ExCEED ThE
AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER, UP TO ThE
AMOUNT OF FEES PAID TO OMNILINk DURING ThE SIx (6) MONThS IMMEDIATELY
PRECEDING ThE EARLIEST EvENT GIvING RISE TO ThE DAMAGES.
UNDER NO CIRCUMSTANCES ShALL OMNILINk OR ITS SUPPLIERS OR LICENSORS
OR RE-SELLERS, INCLUDING BUT NOT LIMITED TO GTx CORP, AND AETREx
WORLDWIDE, INC. BE LIABLE FOR ANY OF ThE FOLLOWING: (I) ThIRD PARTY
CLAIMS OThER ThAN ThOSE IDENTIFIED IN SECTION 10.1; (II) LOSS OR DAMAGE
TO ANY RECORDS OR DATA; (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIvE, RELIANCE OR COvER DAMAGES (INCLUDING LOST PROFITS AND LOST
SAvINGS), EvEN IF ADvISED OF ThE POSSIBILITY OF SUCh DAMAGES; (Iv) ACTIONS
OR CONDUCT OF ANY MONITORED USERS OR SUB-ACCOUNT hOLDERS; (v) ThE
LOSS OF SIGNALS FROM ANY GPS SATELLITE, ThE LOSS OF SIGNALS FROM
ANY MOBILE NETWORk CELL OR PROvIDER, ThE LOSS OF TELEPhONE SYSTEM
SIGNALS, ThE LOSS OF INTERNET CONNECTIvITY OR (vI) ANY OThER FACTORS
OUTSIDE ThE CONTROL OF OMNILINk.
12. CONFIDENTIALITY
Each Party will use commercially reasonable efforts to maintain the other Party’s
Confidential Information in confidence and to not use or disclose any portion of the
other Party’s Confidential Information to third parties, except as reasonably necessary to
perform this Agreement and as expressly authorized in this Agreement.
13. TERM AND TERMINATION
13.1 Term and Cancellation. The term of this Agreement shall commence on the Effective
Date and shall continue on a month to month basis.
13.2 Cancellation Request. You can terminate this Agreement at any time, and stop
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SECTION 6
SECTION 6
