S222 & S222.250 & S222.100
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USER GUIDE
Appendix | 83
operation in substantial conformity with the Gaumard Documentation. Other than the above, the Gaumard Software is provided “as- is,” with no
express or implied warranties of any kind, including the warranties of merchantability, fitness for a particular purpose, or non-infringement.
5.2 Limitation of Liability. THE TOTAL LIABILITY, IF ANY, OF GAUMARD TO END USER OR ANY THIRD PARTY FOR ALL DAMAGES BASED ON ALL
CLAIMS, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, TORT, OR
OTHERWISE, ARISING FROM THE GAUMARD PRODUCTS IS LIMITED TO ONE HUNDRED DOLLARS. IN NO EVENT WILL GAUMARD BE LIABLE TO
END USER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOSS OF REVENUES, LOSS OF PROFITS, OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 Infringement Indemnification. Gaumard will, as further described below, indemnify, defend, and hold End User harmless, at its expense, against
any claim or suit brought by a third party against End User alleging that any Gaumard Software furnished under this EULA infringes the United States
patent, trademark, copyright or other intellectual property right of a third party. Gaumard will pay all settlements entered into or damages finally
awarded, including attorneys’ fees and costs, based on any such claim or suit; provided that End User gives Gaumard prompt written notice of such
claim and gives Gaumard information, reasonable assistance ,and sole authority to defend or settle the claim. In defense or settlement of the claim,
Gaumard may obtain for End User the right to continue using the Gaumard Software, replace or modify the Gaumard Software so that it becomes
non-infringing, or, if such remedies are not reasonably available, grant End User a refund for the associated Gaumard Products (depreciated over
three years) and accept their return. Gaumard will not have any liability if the alleged infringement is based upon (a) the use or sale of the Gaumard
Software in combination with other products or devices not furnished by or approved by Gaumard; (b) the use of the Gaumard Software in a manner
for which they were not designed as described by the Gaumard Documentation; (c) any modification of the Gaumard Software not performed by or
authorized by Gaumard;
(d) any use of Gaumard Software by End User after End User learns of such allegation of infringement; or (e) any failure by End User to utilize a
non-infringing version of the Gaumard Software made available by Gaumard along with notice that such update is non-infringing. The obligations
set forth in this Section 5.3 are Gaumard’s sole obligations, and End User’s sole and exclusive remedy, for the Gaumard Software infringing third party
intellectual property rights.
6. Miscellaneous.
6.1 Binding Effect; Assignment. This EULA will be binding upon, and inure to the benefit of, End User’s and Gaumard’s respective permitted successors
and permitted assigns. Neither party may assign or transfer this EULA or any of the rights, privileges, duties or obligations under this EULA without
the prior written consent of the other party, except that either party may assign this Agreement to any entity controlled by, controlling, or under
common control with such party at such time, as well as in connection with the sale, transfer, merger, or acquisition, whether by operation of law or
otherwise, of substantially all of the assets of such party. In addition, if End User transfers the Gaumard Product on which the Gaumard Software is
installed to a third party, End User may assign this EULA to such third party, provided that the third party agrees in writing with Gaumard to be bound
by this EULA.
6.2 Notices. Any written notice required by this EULA will be deemed made (a) when delivered by personal service, (b) one (1) business day after
being sent by recognized international overnight courier service (such as FedEx), or (c) when received, if sent by certified or registered mail, postage
prepaid, return receipt requested. Any such notice given to a party sHAL®l be sent to the addresses on the attached Purchase Order. By giving to the
other party written notice thereof, the parties hereto and their respective permitted successors and assigns will have the right from time to time to
change by written notice their respective addressee or address for notices.
6.3 Applicable Law. The validity of this EULA and the rights, obligations and relations of the parties hereunder sHAL®l be construed and determined
under and in accordance with the substantive laws of the State of Florida. All disputes arising under or related to this EULA sHAL®l be resolved
exclusively in the State or Federal Courts located in Dade County, Florida. The parties consent to the jurisdiction and venue of such courts and waive
any claims as to inconvenient forum. The judgments of such courts may be enforced in any court of competent jurisdiction.
6.4 Export Control. End User will not export or re-export the Gaumard Software, including any technical data, except as authorized and permitted
by, and in compliance with, the laws and regulations, including but not limited to all export and re-export laws and regulations, of the United States.
6.5 Severability. If any provision of this EULA is invalid or unenforceable in any circumstances, it will be interpreted as much as possible to reflect the
intent of the parties, and its application in any other circumstances and the remaining provisions of this EULA will not be affected thereby.
6.6 Entire Agreement. This EULA constitutes the entire agreement and understanding of the parties relating to the subject matter thereof. This EULA
supersedes all prior written and oral agreements and all other communications between End User and Gaumard (or a Gaumard distributor) regarding
the subject matter hereof. No contradictory terms and conditions of any purchase order, invoice, or other document issued by End User relating to
the subject matter of this EULA sHAL®l be binding, unless agreed by the parties.
6.7 Waiver of Breach. No waiver by a party of any breach of this EULA will constitute a waiver of any other breach of the same or other provisions of
this EULA. No waiver by a party will be effective unless made in a record signed or otherwise authenticated by an authorized representative of such
party.
6.8 Relationship of the Parties. The parties are independent contractors. Nothing in this EULA or in the activities contemplated by the parties will be
deemed to create an agency, partnership, employment or joint venture relationship between the parties. Neither party will have any responsibility nor
liability for the actions of the other party except as expressly provided in this EULA. Neither party will have any right or authority to bind or obligate
the other party in any manner or make any representation or warranty on beHAL®f of the other party. This EULA is made and entered into for the sole
protection and benefit of Gaumard, its licensors and suppliers, and End User, and no other person or entity sHAL®l be a direct or indirect beneficiary
of or sHAL®l have any direct or indirect cause of action or claim arising from this EULA.
All rights not expressly granted in this license agreement are reserved by Gaumard.
ACKNOWLEDGMENT
By installation of this software, you acknowledge that you have read and understand the foregoing and that you agree to be bound by its terms
and conditions. You also agree that this agreement is the complete and exclusive statement of agreement between the parties and supersedes
all proposed or prior agreements, oral or written, and any other communications between the parties relating to the license described herein.
