Aviom A360 Channel Manager User Manual

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Limitations of Liability.

(a)

General. IN NO EVENT WILL AVIOM BE LIABLE FOR DAMAGES ARISING OUT

OF THE USE OR LICENSING OF THE SOFTWARE OR THE DOCUMENTATION OR ARISING

UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, TO LICENSEE OR

ANY OTHER PERSON OR ENTITY INCLUDING ANY DAMAGES CAUSED TO AVIOM PRODUCTS

FROM USE OF ALL OR ANY PART OF TH E SOFTWARE.

(b)

Consequential Damages, Etc. AVIOM SHALL IN NO EVENT BE LIABLE

TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, OR

CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES,

INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, DAMAGES TO

HARDWARE INCLUDING BUT NOT LIMITED TO AVIOM PRODUCTS, IMPAIRMENT OR

LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, AVIOM

PRODUCT FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER

COMMERCIAL DAMAGES OR LOSSES, DIRECT OR INDIRECT, WHETHER IN TORT, CONTRACT,

OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(c)

THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION (I) REFLECT

AN ALLOCATION OF RISK GIVEN THE AMOUNTS PAYABLE UNDER THIS AGREEMENT

AND (II) SHALL REMAIN FULLY OPERATIVE EVEN IF THE LIMITED REMEDY SET FORTH

IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE HELD TO BE

UNENFORCEABLE.

Export Regulations. The transfer of technology across national boundaries is regulated by the U.S.

Government. Licensee agrees that Licensee shall not: (a) acquire, ship, transport, export or re-export the

Software, directly or indirectly, into any country in violation of any applicable law (including, but not limited

to, the United States Export Administration Act and the regulations promulgated thereunder); or (b) use the

Software for any purpose prohibited by such laws.

Miscellaneous.

(a)

Governing law; Jurisdiction. The validity, interpretation, rights and obligations of the

parties and any dispute arising under this Agreement shall be governed by the laws of the Commonwealth

of Pennsylvania applicable to contracts between residents of Pennsylvania and wholly performed in

Pennsylvania. Neither the United Nations Convention on the International Sale of Goods, the 1974

Convention on the Limitation Period in the International Sale of Goods, nor any amendment or protocol to

either of the foregoing shall apply to this Agreement or the activities undertaken under or in respect of this

Agreement. The state and federal courts with jurisdiction over Chester County, Pennsylvania shall have

exclusive jurisdiction over any case, controversy or dispute concerning this Agreement or its performance or

the Software; provided that Aviom may seek injunctive relief in any court of competent jurisdiction.

(b)

Severability. If any provision of this Agreement shall be determined to be void, invalid,

unenforceable or illegal for any reason, then the validity and enforceability of all the remaining provisions

hereof shall not be affected thereby.

(c)

Failure to Exercise Rights. The failure of either party to exercise any of its rights under

this Agreement for a breach thereof shall not be deemed to be a waiver of those rights or a waiver of any

subsequent breach of the same or any other provision.

(d)

Titles. The titles of the Sections of this Agreement are for convenience only and do not in

any way limit or amplify the terms and conditions of this Agreement.