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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 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,
Software License Agreement
