|
Licensee shall not, either during the term of this Agreement or for a period of one year following its
<br />termination, directly or indirectly solicit or induce any of Licensor's personnel to terminate their
<br />relationship with Licensor to become an employee, consultant or independent contractor of
<br />Licensee, or of any person or company affiliated with Licensee; and Licensee shall not, either
<br />during the term of this Agreement or for a period of one year following its termination, directly or
<br />indirectly, employ or contract with any of Licensor's personnel to perform any function, provide any
<br />service, or render any advice which is Licensor's obligation or responsibility under this Agreement.
<br />The parties acknowledge that the breach of this paragraph may result in damages which are
<br />difficult to ascertain, and therefore, in addition to all of Licensor's remedies under this Agreement
<br />or at law, Licensor shall be entitled to seek injunctive relief and specific performance of Licensee's
<br />obligations under this paragraph.
<br />13. NON-CONSUMER.
<br />The parties agree and Licensee acknowledges that Licensee shall not be deemed a consumer
<br />as defined by any Federal or State Act, and that the Equipment is not covered by any trade practices
<br />act. The parties agree that no claims arising out of the sale or offer for sale shall be made pursuant
<br />to such acts and that each party will rely on the remedies provided for in this Agreement as a
<br />mutually agreeable allocation of risk.
<br />14. WARRANTIES; LIMITS OF LIABILITY.
<br />Licensee affirms that it has the requisite expertise to select, inspect and evaluate the
<br />Software and determine the appropriateness thereof for Licensee's intended uses. Licensee does not
<br />rely upon any statements or representations of Licensor, oral or written, with the respect to the
<br />Software. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH
<br />RESPECT TO THE SOFTWARE, ARISING OUT OF OR IN CONDUCTION WITH THEIR USE
<br />OR PERFORMANCE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES
<br />OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR
<br />WII.L IN NO EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENT[AL
<br />OR EXEMPLARY DAMAGES OR CLAIMS OF ANY THIRD PARTIES. IN NO EVENT
<br />SHALL LICENSOR'S LIABILITY EXCEED THE REFUND OF THE DOWNPAYMENT OR
<br />OTHER INSTALLMENTS OF THE PRICE OF THE SOFTWARE PAID TO LICENSOR BY
<br />LICENSEE. Any and all legal statute(s) of limitations shall apply to any actions or proceedings
<br />based on this Agreement or arising out of its performance or breach.
<br />15. EXCUSED PERFORMANCE; EXCLUSION OF DAMAGES.
<br />Licensor shall not be in default by reason of any failure or delay in its performance which
<br />results, directly or indirectly, from fire, explosion, strike, freight embargo, Act of God or the public
<br />enemy, war civil dishtrbances, act of any government, de jure or de facto, or any agency or official
<br />thereof, material or labor shortage, transportation contingencies, unusually severe weather, default
<br />or delay of any manufacturer, a supplier or a subcontractor, quarantine, resection, epidemic,
<br />catastrophe, lack of timely instntctions or essential information from Licensee, or which otherwise
<br />arises out of causes beyond the control of Licensor whether similar or dissimilar to the foregoing.
<br />16. LEGAL PROCEEDINGS AND OTHER REMEDIES.
<br />All disputes arising under, in connection with, or concerning the interpretation,
<br />enforcement, or breach of this Agreement, whether in contract, tort, or otherwise, and regardless of
<br />6 of 20
<br />
|