463-3000-08 revised Sept 16, 2013
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6.
Fees.
Licensee fees are referenced in the Purchase Order.
7.
Limited Warranty.
LOFA warrants for a period of thirty (30) days from the first date that it delivers to Licensee the Materials that (a) the Licensed Product(s) will
operate in conformity with the material specifications for such item; (b) will be free from material defects; and (c) the media, if any, on which the Licensed Product
is furnished will be free from material defects in materials and faulty workmanship under normal use. LOFA’s sole liability and Licensee’s exclusive remedy for any
failure to meet these warranties will be limited to repair or replacement of the defective Materials at LOFA’s option and expense.
8.
Warranty Disclaimer.
Except as provided in this Agreement, LOFA transfers the Materials to Licensee on an “as is” basis. The warranties in this Agreement, are in
lieu of all other warranties or conditions, and LOFA makes no other warranty, condition or representation of any kind whether express or implied, and LOFA
expressly disclaims the implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, infringement and those arising
by statute or otherwise in law or from the course of dealing or usage of trade. LOFA does not represent or warrant that the Materials will meet any or all of
Licensee’s particular requirements, that the operation of the Materials will be error-free or uninterrupted, or that all programming errors in the Licensed Product
can be found in order to be corrected. All warranties provided in this Agreement are solely for the benefit of, and may not be transferred by, Licensee, to any third
party.
(a)
Limits on Scope of Indemnity.
LOFA will have no liability for any infringement arising from (i) the use of the Licensed Product other than as set forth in its
accompanying documentation or specifications; (ii) the modification of the Licensed Product; or (iii) the combination or use of the Licensed Product with
other software, hardware, items or processes to the extent such infringement is not foreseeable use of the Licensed Product. This Section states LOFA’s
entire obligation with respect to any claim regarding the intellectual property rights of any third party.
(b)
Licensee Indemnification Obligation.
Licensee shall indemnify, defend and hold harmless LOFA, its directors, officers, and employees from and against any
claim, demand, cause of action, loss, damage, liability suit, proceeding, judgment, or cost (including attorney fees), brought against LOFA which is based on
the creation, use or distribution of Licensee Devices to the extent that such suit or proceeding does not arise or result from: (i) LOFA's material breach of any
agreement, obligation, representation, warranty or covenant contained in this Agreement; (ii) any wrongful, negligent action or failure to act by LOFA, its
employees, agents or independent contractors; or, (iii) any liability for which LOFA is obligated to indemnify Licensee under this Section.
9.
Term and Termination.
(a)
Term.
Unless otherwise specified in Exhibit A, the term of this Agreement will commence on the Effective Date and will continue into perpetuity unless
otherwise terminated earlier under this Agreement.
(b)
Termination for Cause.
Any of the following shall suffice to terminate this Agreement:
(i)
If Licensee materially breaches any term or condition of this Agreement and fails to cure that breach within thirty (30) days after receiving written
notice of the breach.
(ii)
This Agreement will terminate automatically without notice and without further action by LOFA in the event Licensee becomes insolvent (i.e., becomes
unable to pay its debts in the ordinary course of business as they come due), makes an assignment in violation of this Agreement or makes an
assignment for the benefit of creditors or if any other bankruptcy proceedings are commenced by or against Licensee.
(c)
Consequences.
Upon the termination of this Agreement for any reason: (i) all rights granted hereunder will automatically revert to LOFA; (ii) Licensee must
(A) return to LOFA (or, at LOFA’s option, destroy) the originals and all copies of the Materials in Licensee’s possession or control; (B) erase any and all of the
foregoing from all computer memories and stored Licensee Devices within its possession or control; and (C) provide LOFA with a written statement
certifying that it has complied with the foregoing obligations. End use licenses to Licensee Devices for Customers granted by Licensee to Customers prior to
termination will survive any such termination.
10.
Limitation of Liability.
(a)
LICENSEE AGREES THAT ANY LIABILITY ON THE PART OF LOFA FOR BREACH OF THE WARRANTIES CONTAINED HEREIN OR ANY OF THE OTHER
PROVISIONS OF THIS AGREEMENT OR ANY OTHER BREACH GIVING RISE TO LIABILITY OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS
AGREEMENT FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT
LIABILITY, TORT INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), WILL BE LIMITED TO LICENSEE'S DIRECT DAMAGES IN AN
AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID TO LOFA BY LICENSEE FOR THE LOFA HARDWARE.
(b)
LICENSEE AGREE THAT IN NO EVENT WILL LOFA BE LIABLE FOR DAMAGES IN RESPECT OF INCIDENTAL, ORDINARY, PUNITIVE, EXEMPLARY, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES EVEN IF LOFA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO,
BUSINESS INTERRUPTION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, ECONOMIC LOSS, LOSS OF DATA, LOSS OF
BUSINESS OPPORTUNITY OR ANY CLAIM AGAINST LICENSEE BY ANY OTHER PARTY
.
(c)
LICENSEE ACKNOWLEDGES THAT LOFA’S LIMITED LIABILITY EXPRESSED IN THIS AGREEMENT REPRESENTS A MATERIAL BASIS FOR SETTING THE FEES FOR
LOFA HARDWARE.
11.
Use of Trademarks.
Any and all trademarks and trade names which LOFA uses in connection with the license granted hereunder (“LOFA Marks”) are and remain the exclusive property
of LOFA. Nothing contained in this Agreement may be deemed to give Licensee any right, title or interest in any LOFA Marks. Subject to notice from LOFA in
writing which modifies or cancels such license at LOFA’s sole discretion, during the continuance of this Agreement, LOFA hereby grants Licensee a nonexclusive,
revocable license to the LOFA Marks for normal advertising, marketing and promotion of Licensee Devices according to guidelines that LOFA may issue from time
to time. Licensee must act consistently with LOFA’s ownership of the LOFA Marks and may not use LOFA Marks in a disparaging manner. Licensee agrees to use
correct trademark notices on advertisements, sales literature, dealer materials, press releases and other marketing materials, which use or display LOFA Marks.
Licensee agrees to provide samples of all Licensee’s marketing materials and Licensee Devices containing LOFA Marks to LOFA for prior approval. If LOFA rejects
any of Licensee’s use of LOFA Marks, then the parties may cooperate reasonably in order modify such materials for approval prior to release or use by Licensee.
To the extent that LOFA withdraws any portion of the trademark license granted in this subsection, Licensee’s obligations under this Section, above, will also
terminate if the rights necessary to comply with such obligation are withdrawn.
12.
Interpretation of This Agreement.
This Agreement is the entire Agreement to date between the parties regarding the Materials and supersedes any such prior
agreement or communication. Any subsequent waiver or modification of this Agreement, or any part, shall only be effective if reduced to writing and signed by
both parties. No delay or failure to enforce any right under this Agreement will be considered a waiver of a party's rights thereafter to enforce each and every
right and provision of this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable,
such provision will be severed from this Agreement and the other provisions will remain in full force and effect. This Agreement will be binding upon, and inure to
the benefit of, the successors, heirs and assigns of the parties. Neither Licensee nor Licensee employees, consultants, contractors or agents are agents, employees
or joint-venturers of LOFA, nor do they have any authority to bind LOFA by contract or otherwise to any obligation. Licensee agrees not to make any statements
that state or imply that LOFA certifies or guarantees Licensee Devices or that Licensee Devices are warranted, tested or approved by LOFA. Dates and times by
which either party is required to render performance will be postponed automatically to the extent and for the period of time that such party is prevented from