|
for which CommSys has a duty of confidentiality. Confidential information shall
<br />include, without limitatlon, .past, present, or future Trade Secrets (as defined
<br />below), as well as all customer, vendor, and supplier information, all pricing and
<br />marketing Information, all financial information, intellectual property rights
<br />associated with the Licensed Software and the Source Code, and all derivations,
<br />modifications, and translations thereof, all research results and related
<br />information, all employee and independent contractor information, and all other
<br />processes, procedures, prospects, data, ideas, inventions, all other information of
<br />any kind or character relating to the development, improvement, marketing, sale,
<br />or delivery of products and services by CommSys, whether or not reduced to
<br />writing, and all other proprietary information. "Trade Secrets" means any
<br />information of any nature that: (I) derives economic value, actual or. potential,
<br />from not being generally known to, or generally ascertainable by proper means
<br />by other persons who can obtain economic value from their disclosure or use; or
<br />(ii) is a subject of efforts that are reasonable under the circumstances to maintain
<br />its secrecy.
<br />5. Limited Warranty
<br />CommSys warrants that, until such time as the performance of any support and
<br />maintenance activities with respect to the Licensed Software, the Licensed
<br />Software will reasonably conform to the specifications set forth in the CLIPSTM
<br />product description accompanying the Licensed Software at the time of delivery to
<br />Client. In the event of any breach of the warranty set forth In this Section a, Client's
<br />sole remedy, and CommSys' sole liability, will be, at CommSys" sale caption, to: (i)
<br />repair the Licensed Software so as to conform to the warranty, or (ii) refund the
<br />License Fees for the Licensed Software paid by Client through the date of such
<br />noncomformity.
<br />THE WARRANTIES OF COMMSYS SET FORTH IN THIS SECTION 5 ARE
<br />EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES,
<br />EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
<br />PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING,
<br />USAGE OR TRADE PRACTICE. IN NO EVENT SHALL COMMSYS BE LIABLE
<br />FOR ANY LOST REVENUES OR PROFITS, OR OTHER SPECIAL, INCIDENTAL,
<br />INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING., WITHOUT
<br />LIMITATION, LOSS OF DATA OR PROFITS, WHETHER OR NOT AS A -CLAIM
<br />ARISING BY REASON OF BREACH OF WARRANTY OR BASED ON
<br />CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF COMMSYS
<br />HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />FURTHERMORE, IT IS AGREED THAT COMMSYS'S LIABILITY HEREUNDER
<br />SHALL IN NO EVENT EXCEED THE ,AMOUNT OF LICENSE FEES ACTUALLY
<br />PAID BY CLIENT TO COMMSYS.
<br />This document contains Information confidential to CommSys Wo,
<br />Page 4 of 10
<br />
|