2.8 Customer acknowledges that the Licensed Software, including, without limitation, TE TECH logos, trademarks and all information contained therein, is proprietary
to TE TECH, is valua le, gives a competitive advantage to TE TECH, and could not, without significant expense and difficulty, e o tained or duplicated y others who have not
een a le to acquire the same through means expressly authorized in this agreement. You agree that, unless you first o tain the prior written consent of TE TECH ,or unless
required y law, you shall not communicate or disclose, directly or indirectly, to any person or firm, or use at any time, any of the TE TECH’s proprietary information, except as
provided in this Agreement. The provisions of the section, among certain others, shall survive the termination of this Agreement for whatever reason. The Licensed Software
shall e and remain the exclusive property of TE TECH.
3. WARRANTY
3.1 Only if Customer has purchased Designated Hardware (the purchase price of which automatically includes the license fee), TE TECH warrants that the Application
Software will e in su stantial conformance with the specifications in the manual pertaining thereto as of the date of shipment y TE TECH. If, within ninety (90) days of date
of shipment, it is shown that the Application Software does not meet this warranty, TE TECH will, at its option, either correct the defect or error in the Application Software,
free of charge, or make availa le to Customer satisfactory su stitute software, or, as a last resort, return to Customer all payments made as license fees and terminate the
license with respect to the Application Software affected. TE TECH does not warrant that operation of the Application Software will e uninterrupted or error free or that it
will meet Customer’s needs. All other portions of the Licensed Software are provided “as is” without warranty of any kind.
3.2 TE TECH warrants that the media on which the Application Software is delivered will e free from defects in material or workmanship under normal use and
service for a period of ninety (90) days from the date of delivery. If any defects are discovered in the media is discovered and reported y Customer within ninety (90) days
after delivery TE TECH shall, at no cost to Customer, upon return of same to TE TECH, replace the media and deliver (electronically) to Customer a new and complete copy of
the Licensed Software.
3.3 Any modification to the Licensed Software y the Customer without the express written consent of TE TECH shall void the warranty.
3.4 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE WHETHER WRITTEN,
ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNLESS
CUSTOMER HAS PAID TE TECH A SEPARATE LICENSE FEE THEREFOR, TE TECH MAKES NO WARRANTIES AS TO THE LICENSED SOFTWARE, WHICH IS PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL TE TECH OR
ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF
USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF, OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE
PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF CUSTOMER’S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF
TE TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, SHALL TE TECH’S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS
PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE QUOTED CHARGES
FOR THE LICENSED SOFTWARE. ANY SUCH LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE WARRANTY PERIOD AS SET FORTH IN SECTION 3.
4.3 If TE TECH furnishes Customer with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any system or
equipment on which any such software may e installed and which is not required pursuant to this Agreement the furnishing of such advice or assistance will not su ject TE
TECH to any lia ility, whether in contract, warranty, tort (including negligence) or otherwise.
4.4 The products (hardware and software) to e licensed or sold hereunder are not intended for use in any application specifically prohi ited in writing y TE TECH,
including, without limitation, in any nuclear, chemical or weapons production facility or activity, or other activity where failure of the products could lead directly to death,
personal injury or severe physical or environmental damage. If so used, TE TECH disclaims all lia ility for any damages arising as a result of the hazardous nature of the
usiness in question, including ut not limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall indemnify, hold harmless and
defend TE TECH, its officers, directors, employees and agents against all such lia ility, whether ased on contract, warranty, tort (including negligence), or any other legal
theory, regardless of whether TE TECH had knowledge of the possi ility of such damages.
5. INDEMNITY
5.1 Should the Application Software e held y a court to constitute patent or copyright infringement and its use is enjoined, TE TECH shall, at its expense and option,
either procure for Customer the right to continued use, or replace same with a non-infringing product or part, or modify the Application Software so that it ecomes non-
infringing, or remove the software and refund the license charge pertaining thereto (less reasona le depredation for any period of use) and any transportation costs
separately paid y Customer. The foregoing states the entire lia ility of TE TECH for patent and copyright infringement y the Licensed Software or any part thereof.
5.2 The indemnity under the preceding paragraph shall not apply to any use of Application Software in conjunction with any other product in a com ination not
furnished y TE TECH as a part of this transaction. As to any such use in such com ination, or any improper or unauthorized use, installation, or operation of the Application
Software, TE TECH assumes no lia ility whatsoever for patent and copyright infringement and Customer will hold TE TECH harmless against any infringement claims arising
there from (including, ut not limited to, reasona le attorney’s fees).
6. TERM AND TERMINATION
6.1 You may terminate the license granted hereunder at any time y destroying the Licensed Software together with all copies thereof and notifying TE TECH in
writing that all use of the Licensed Software has ceased and that same has een destroyed.
6.2 TE TECH, upon thirty (30) days’ notice, may terminate this Agreement or any license hereunder if Customer fails to perform any o ligation or undertaking to e
performed y it under this Agreement or if Customer attempts to assign this Agreement without the prior written consent of TE TECH. Within twenty (20) days after any such
termination of this Agreement, Customer shall certify in writing to TE TECH that all use of the Licensed Software has ceased, and that same has een returned or destroyed, in
accordance with TE TECH’s instructions.
6.3 Sections 4, 6 and 7 of this Agreement shall survive any expiration or termination and remain in effect. Termination of this Agreement or any license hereunder
shall not relieve Customer of its o ligation to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges previously paid.
