Seiwa Si-Tex Vector 3D GPS User Manual

Page 50

electrical discharge) or neglect other than that caused by SI-TEX. SI-TEX GPS does not warrant or guarantee the precision or
accuracy of positions obtained when using the Software (whether standalone or embedded in a Product). The Product and the
Software is not intended and should not be used as the primary means of navigation or for use in safety of life applications. The
potential positioning and navigation accuracy obtainable with the Software as stated in the Product or Software documentation
serves to provide only an estimate of achievable accuracy based on specifications provided by the US Department of Defense for
GPS positioning and DGPS service provider performance specifications, where applicable.

10. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, SI-TEX MAKES NO

REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND TO LICENSEE, WHETHER VERBAL OR WRITTEN
AND HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND INCLUDING
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY, RELIABILITY OR THAT THE USE OF
THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE AND HEREBY DISCLAIMS ALL
REPRESENTATIONS, WARRANTIES AND CONDITIONS ARISING AS A RESULT OF CUSTOM, USAGE OR TRADE
AND THOSE ARISING UNDER STATUTE.

11. LIMITS ON WARRANTY DISCLAIMER. Some jurisdictions do not allow the exclusion of implied warranties or conditions,

so some of the above exclusions may not apply to Licensee. In that case, any implied warranties or conditions which would then
otherwise arise will be limited in duration to ninety (90) days from the date of the license of the Software or the purchase of the
Product. The warranties given herein give Licensee specific legal rights and Licensee may have other rights which may vary from
jurisdiction to jurisdiction.

12. CHANGE TO WARRANTY. No employee or agent of SI-TEX is authorized to change the warranty provided or the limitation

or disclaimer of warranty provisions. All such changes will only be effective if pursuant to a separate agreement signed by senior
officers of the respective parties.

13. WARRANTY CLAIM. In the event Licensee has a warranty claim Licensee must first check for and install all Updates that are

made available. The warranty will not otherwise be honored. Proof of purchase may be required. SI-TEX does not honor claims
asserted after the end of the Warranty Period.

14. LICENSEE REMEDIES. In all cases which involve a failure of the Software to conform in any material respect to the

documentation during the Warranty Period or a breach of a warranty, SI-TEX's sole obligation and liability, and Licensee's sole
and exclusive remedy, is for SI-TEX, at SI-TEX's option, to (a) repair the Software, (b) replace the Software with software
conforming to the documentation, or (c) if SI-TEX is unable, on a reasonable commercial basis, to repair the Software or to
replace the Software with conforming software within ninety (90) days, to terminate this Agreement and thereafter Licensee shall
cease using the Software. SI-TEX will also issue a refund for the price paid by Licensee less an amount on account of
amortization, calculated on a straight-line basis over a deemed useful life of three (3) years.

15. LIMITATION OF LIABILITY. IN NO EVENT WILL SI-TEX BE LIABLE TO LICENSEE FOR ANY INCIDENTAL,

CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES INCLUDING ARISING IN RELATION TO ANY LOSS OF
DATA, INCOME, REVENUE, GOODWILL OR ANTICIPATED SAVINGS EVEN IF SI-TEX HAS BEEN INFORMED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE. FURTHER, IN NO EVENT WILL SI-TEX'S TOTAL CUMULATIVE
LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE TOTAL AMOUNT PAID BY
LICENSEE TO SI-TEX TO PURCHASE THE PRODUCT. THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE
OF THE CAUSE OF ACTION, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, STRICT
LIABILITY, TORT, BREACH OF WARRANTY, MISREPRESENTATION OR ANY OTHER LEGAL THEORY AND WILL
SURVIVE A FUNDAMENTAL BREACH.

16. LIMITS ON LIMITATION OF LIABILITY. Some jurisdictions do not allow for the limitation or exclusion of liability for

incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee and Licensee may also have
other legal rights which may vary from jurisdiction to jurisdiction.

17. BASIS OF BARGAIN. Licensee agrees and acknowledges that SI-TEX has set its prices and the parties have entered into this

Agreement in reliance on the limited warranties, warranty disclaimers and limitations of liability set forth herein, that the same
reflect an agreed-to allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose and
cause consequential loss), and that the same forms an essential basis of the bargain between the parties. Licensee agrees and
acknowledges that SI-TEX would not have been able to sell the Product at the amount charged on an economic basis without such
limitations.

18. PROPRIETARY RIGHTS INDEMNITY. SI-TEX shall indemnify, defend and hold harmless Licensee from and against any

and all actions, claims, demands, proceedings, liabilities, direct damages, judgments, settlements, fines, penalties, costs and
expenses, including royalties and attorneys' fees and related costs, in connection with or arising out of any actual infringement of
any third party patent, copyright or other intellectual property right by the Software or by its use, in accordance with this
Agreement and documentation, PROVIDED THAT: (a) SI-TEX has the right to assume full control over any action, claim,
demand or proceeding, (b) Licensee shall promptly notify SI-TEX of any such action, claim, demand, or proceeding, and (c)
Licensee shall give SI-TEX such reasonable assistance and tangible material as is reasonably available to Licensee for the defense
of the action, claim, demand or proceeding. Licensee shall not settle or compromise any of same for which SI-TEX has agreed to
assume responsibility without SI-TEX's prior written consent. Licensee may, at its sole cost and expense, retain separate counsel
from the counsel utilized or retained by SI-TEX.

19. INFRINGEMENT. If use of the Software may be enjoined due to a claim of infringement by a third party then, at its sole

discretion and expense, SI-TEX may do one of the following: (a) negotiate a license or other agreement so that the Product is no
longer subject to such a potential claim, (b) modify the Product so that it becomes non-infringing, provided such modification can