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MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES
FOR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND ENCORE ELECTRONICS,
INC. EXPRESSLY DISCLAIMS ALL WARRANTIES NOT STATED HEREIN. YOU ASSUME
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE.
SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU, AND NOT ENCORE ELECTRONICS,
INC. OR AN AUTHORIZED RESELLER, ASSUME THE ENTIRE COST OF NECESSARY
SERVICING, REPAIR, OR CORRECTION. SOME STATES DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO
YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO
HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. YOUR SOLE REMEDY AND
THE ENTIRE LIABILITY OF ENCORE ELECTRONICS, INC. ARE SET FORTH ABOVE.
6. No Liability for Consequential Damages.
YOU AGREE THAT IN NO EVENT SHALL
ENCORE ELECTRONICS, INC. OR ITS AGENTS BE LIABLE FOR ANY LOSS OF
ANTICIPATED PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION,
COST OF COVER OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY
TO USE THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE), EVEN IF ENCORE ELECTRONICS, INC. HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ENCORE ELECTRONICS, INC. BE
LIABLE TO YOU FOR DAMAGES IN AN AMOUNT GREATER THAN THE FEES PAID FOR
THE USE THE FOREGOING LIMITATIONS APPLY TO THE EXTENT PERMITTED BY
APPLICABLE LAWS IN YOUR JURISDICTION.
7. Export.
You will not export or re-export the product incorporating the Software without the
appropriate United States or foreign government licenses.
8. U.S. Government Restricted Rights.
If you are a unit or agency of the United States
government, the Software and related documentation are deemed to be "commercial computer
software" and "commercial computer software documentation," respectively, pursuant to DFAR
Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification,
reproduction, release, performing, displaying or disclosing of the Software and/or the related
documentation by the United States government shall be governed solely by the terms of this
Agreement and shall be prohibited except to the extent expressly permitted by the terms of this
Agreement. Any technical data provided that is not covered by the above provisions is deemed
to be "technical data commercial items" pursuant to DFAR Section 227.7015(a). Any use,
modification, reproduction, release, performing, displaying or disclosing of such technical data
shall be governed by the terms of DFAR Section 227.7015(b).
9. Termination.
THIS AGREEMENT SHALL BE EFFECTIVE UPON INSTALLATION OF THE
SOFTWARE AND SHALL TERMINATE UPON THE EARLIER OF: (i) YOUR FAILURE TO
COMPLY WITH ANY TERM OF THIS AGREEMENT; OR (ii) RETURN, DESTRUCTION OR
DELETION OF ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION. Encore
Electronics, Inc.'s rights and your obligations shall survive the termination of this Agreement.
10. High Risk Activities.
The Software is not fault-tolerant and is not designed or intended for
use in hazardous environments requiring fail-safe performance, or any other application in which
the failure of the Software could lead directly to death, personal injury, or severe physical or
