NYTC
or
an
authorized
NYTC
reseller
receives
the
defective
Hardware.
Licensee
must
obtain
from
NYTC
or
an
authorized
NYTC
reseller
a
Return
Materials
Authorization
(RMA),
authorizing
and
specifying
procedures
for
the
return
of
any
defective
Hardware.
Products
returned
to
NYTC
or
an
authorized
NYTC
reseller
without
an
RMA
will
be
returned
to
Licensee
at
Licensee’s
expense.
All
Hardware
returned
to
NYTC
or
an
authorized
NYTC
reseller
must
be
properly
packaged
with
postage
prepaid.
Replacement
parts
may
contain
recycled,
refurbished,
or
remanufactured
parts
equivalent
to
new
parts
and
are
warranted
for
the
greater
of
the
remainder
of
the
original
Hardware
warranty
period
or
thirty
(30)
days.
This
warranty
shall
not
apply
to
(a)
supplies
and
consumables,
(b)
Products
with
original
identification
marks
removed
or
altered,
(c)
Products
not
manufactured
by
NYTC,
or
(d)
Products
with
defects
or
failures
due
to:
disaster,
accident,
neglect,
or
misuse;
failure
or
defect
of
electrical
power,
external
electrical
circuitry,
air
conditioning,
or
humidity
control;
use
of
Products
with
items
not
provided
or
approved
in
writing
by
NYTC;
use
of
the
Products
other
than
according
to
NYTC’s
published
specifications
and
instructions;
or
modifications,
adjustments,
repairs,
or
service
provided
by
anyone
other
than
NYTC
or
its
authorized
service
provider.
6.2.
NO
OTHER
WARRANTY
.
EXCEPT
AS
EXPRESSLY
STATED
IN
THIS
AGREEMENT,
THE
PRODUCT
PROVIDED
UNDER
THIS
AGREEMENT
IS
PROVIDED
BY
NYTC
ON
AN
“AS
IS”
BASIS.
LICENSEE
ASSUMES
ALL
RESPONSIBILITIES
FOR
THE
SELECTION
OF
THE
PRODUCT
TO
ACHIEVE
THE
INTENDED
RESULTS
AND
FOR
THE
INSTALLATION
OF,
USE
OF
AND
RESULTS
OBTAINED
FROM
THE
PRODUCT.
NYTC
DOES
NOT
WARRANT
THE
PERFORMANCE
OR
THE
RESULTS
LICENSEE
MAY
OBTAIN
BY
USING
THE
PRODUCT
AND
DISCLAIMS
ALL
WARRANTIES
(EXCLUDING
THE
LIMITED
WARRANTY
IN
SECTION
6.1),
EITHER
EXPRESS
OR
IMPLIED,
INCLUDING
BUT
NOT
LIMITED
TO,
IMPLIED
WARRANTIES
OF
MERCHANTABILITY,
FITNESS
FOR
A
PARTICULAR
PURPOSE
AND
NONINFRINGEMENT
OF
THIRD
PARTY
RIGHTS
WITH
RESPECT
TO
PRODUCT
AND
THE
ACCOMPANYING
WRITTEN
MATERIALS.
SOME
STATES
OR
JURISDICTIONS
DO
NOT
ALLOW
THE
EXCLUSION
OF
EXPRESS
OR
IMPLIED
WARRANTIES,
SO
THE
ABOVE
EXCLUSION
MAY
NOT
APPLY
TO
YOU.
IN
THAT
EVENT,
SUCH
WARRANTIES
ARE
LIMITED
IN
DURATION
TO
THE
WARRANTY
PERIOD.
NO
WARRANTIES
APPLY
AFTER
THAT
PERIOD.
SOME
STATES
OR
JURISDICTIONS
DO
NOT
ALLOW
LIMITATIONS
ON
HOW
LONG
AN
IMPLIED
WARRANTY
LASTS,
SO
THE
FOREGOING
LIMITATION
MAY
NOT
APPLY
TO
YOU.
7.
LIMIT
OF
LIABILITY.
LICENSEE
ASSUMES
THE
ENTIRE
COST
OF
ANY
DAMAGE
RESULTING
FROM
THE
INFORMATION
CONTAINED
IN
OR
COMPILED
BY
THE
PRODUCT.
IN
NO
EVENT
WILL
NYTC
OR
ITS
DISTRIBUTORS
BE
LIABLE
FOR
ANY
CONSEQUENTIAL,
PUNTITIVE,
SPECIAL,
INDIRECT
OR
EXEMPLARY
DAMAGES
WHATSOEVER
INCLUDING,
WITHOUT
LIMITATION,
DAMAGES
FOR
LOSS
OF
BUSINESS
PROFITS,
BUSINESS
INTERRUPTION,
LOSS
OF
BUSINESS
INFORMATION
OR
OTHER
PECUNIARY
LOSS
ARISING
OUT
OF
THE
USE
OR
INABILITY
TO
USE
THE
PRODUCT,
EVEN
IF
SUCH
PARTY
HAS
BEEN
ADVISED
OF
THE
POSSIBILITY
OF
SUCH
DAMAGES.
SOME
JURISDICTIONS
DO
NOT
ALLOW
THE
EXCLUSION
OR
LIMITATION
OF
INCIDENTAL
OR
CONSEQUENTIAL
DAMAGES,
SO
THE
ABOVE
LIMITATION
OR
EXCLUSION
MAY
NOT
APPLY
TO
YOU.
IN
NO
EVENT
WILL
NYTC’S
TOTAL
LIABILITY
TO
LICENSEE
FOR
ANY
CLAIMS,
WHETHER
BASED
IN
CONTRACT,
TORT,
OR
OTHERWISE,
EXCEED
THE
AMOUNT
PAID
BY
LICENSEE
FOR
THE
PRODUCT.
THIS
LIMITATION
WILL
APPLY
REGARDLESS
OF
THE
FAILURE
OF
THE
ESSENTIAL
PURPOSE
OF
ANY
LIMITED
REMEDY.
SOME
JURISDICTIONS
DO
NOT
ALLOW
EXCLUSION
OF
LIABILITY
OR
LIMITATIONS
ON
CLAIMS
RELATED
TO
PERSONAL
INJURY
AND
DAMAGE
TO
REAL
PROPERTY
OR
TANGIBLE
PERSONAL
PROPERTY.
IN
SUCH
EVENT,
NYTC
SHALL,
WHERE
PERMITTED
BY
APPLICABLE
LAW,
ONLY
BE
LIABLE:
(i)
TO
THE
EXTENT
SUCH
DAMAGES
ARE
CAUSED
BY
ITS
NEGLIGENCE;
AND
(ii)
FOR
OTHER
ACTUAL
DAMAGES
UP
TO
THE
AMOUNT
PAID
BY
LICENSEE
FOR
THE
PRODUCT
THAT
IS
THE
SUBJECT
OF
THE
CLAIM
OR
THAT
GIVES
RISE
TO
THE
CLAIM.
8.
OPEN
SOURCE
SOFTWARE
.
8.1.
The
Products
include
certain
open
source
software.
This
open
source
software
is
governed
by
the
terms
and
conditions
of
the
applicable
open
source
license,
and
you
are
bound
by
the
terms
and
conditions
of
the
applicable
open
source
license
in
connection
with
your
use
and
distribution
of
the
open
source
software
in
this
product.
The
open
source
software
included
in
the
Products
are
identified
within
the
“Support”
section
at
www.nytechco.com
,
and
you
agree
to
comply
with
all
such
licenses
and
other
notices.
If
you
do
not
agree
to
such
terms,
you
may
not
install,
download,
or
otherwise
use
the
open
source
software.
9.
INDEMNIFICATIONS
.
9.1.
NYTC
Defense
of
Copyright
Claims
.
NYTC
will
defend
Licensee
against
any
claim
by
an
unaffiliated
third
party
of
Licensee
that
the
Software
infringes
its
copyright,
and
will
pay
the
amount
of
any
resulting
adverse
final
judgment
(or
settlement
to
which
NYTC
consents),
subject
to
applicable
terms
of
this
Agreement.
Licensee
must
notify
NYTC
promptly
in
writing
of
the
claim
and
give
NYTC
sole
control
over
its
defense
or
settlement.
Licensee
agrees
to
provide
NYTC
with
reasonable
assistance
in
defending
the
claim.
NYTC’s
obligations
will
not
apply
to
the
extent
that
any
claim
or
adverse
final
judgment
is
based
on
(i)
use
of
the
Software
after
NYTC
notifies
Licensee
that
Licensee’s
use
of
the
Software
must
be
discontinued
due
to
such
a
claim;
(ii)
combining
the
Software
with
other
technology
including
other
computer
software
or
other
materials;
(iii)
use
of,
or
access
to,
the
Software
by
any
person
or
entity
other
than
Licensee
as
permitted
herein;
or
(iv)
an
alteration
of
the
Software
by
someone
other
than
NYTC
or
its
contractors.
Licensee
will
reimburse
NYTC
for
any
costs
or
damages
that
result
from
these
activities
to
the
extent
caused
or
resulting
from
the
fault
of
Licensee,
its
directors,
offices,
employees,
contractors,
agents,
or
assignees.
If
NYTC
receives
information
concerning
a
copyright
infringement
claim,
it
may,
at
its
expense
and
without
obligation
to
do
so,
either
(i)
procure
for
Licensee
the
right
to
continue
to
use
the
allegedly
infringing
the
Software,
or
(ii)
modify
Software
to
make
it
non
‐
infringing,
or
(iii)
replace
it
with
a
non
‐
infringing
functional
equivalent,
in
which
case
Licensee
will
stop
using
the
allegedly
infringing
Software
immediately.
If
however,
as
a
result
of
a
copyright
infringement
claim,
use
of
the
Software
is
enjoined
by
a
court
of
competent
jurisdiction,
NYTC
will
use
commercially
reasonable
efforts
to
either
procure
the
right
to
continue
its
use,
modify
it
to
make
it
non
infringing,
or
replace
it
with
a
non
‐
infringing
functional
equivalent.
9.2.
Licensee
shall,
at
its
sole
expense,
defend
or
settle
any
suit
or
claim
brought
against
NYTC,
its
licensors,
agents
or
suppliers,
and
shall
indemnify
and
hold
NYTC
and
its
licensors,
agents
and
suppliers
and
their
respective
officers
and
directors
harmless
from
and
against
any
and
all
liabilities
and
expenses
(including
reasonable
legal
expenses)
incurred,
resulting
from
or
arising
out
of
a
claim
that
Licensee’s
unauthorized
use
infringes
any
third
party
rights.
10.
AUDIT.
Upon
written
notice,
NYTC
shall
have
the
right
to
audit
the
compliance
of
Licensee
with
this
Agreement.
Licensee
shall
provide
full
and
free
access
to
all
books,
records,
systems,
and
materials
requested
by
NYTC.
In
the
event
of
discrepancies,
without
limiting
any
of
NYTC’s
other
rights
or
remedies
available
at
law
or
in
equity,
Licensee
shall
immediately
take
any
and
all
steps
necessary
to
comply
with
the
terms
of
this
Agreement
and
Licensee
shall
immediately
pay
to
NYTC
any
sums
owed
and
NYTC’s
cost
of
the
audit.
