TE Technology TC-36-25-RS232 User Manual

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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 valuable, gives a competitive advantage to TE TECH, and could not, without significant expense and difficulty, be obtained or duplicated by others who have not

been able to acquire the same through means expressly authorized in this agreement. You agree that, unless you first obtain the prior written consent of TE TECH ,or unless

required by 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 be and remain the exclusive property of TE TECH.

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 be in substantial conformance with the specifications in the manual pertaining thereto as of the date of shipment by 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 available to Customer satisfactory substitute 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 be 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 be 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 by 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 by 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.

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 be installed and which is not required pursuant to this Agreement the furnishing of such advice or assistance will not subject TE

TECH to any liability, whether in contract, warranty, tort (including negligence) or otherwise.

4.4

The products (hardware and software) to be licensed or sold hereunder are not intended for use in any application specifically prohibited in writing by 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 liability for any damages arising as a result of the hazardous nature of the

business in question, including but 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 liability, whether based on contract, warranty, tort (including negligence), or any other legal

theory, regardless of whether TE TECH had knowledge of the possibility of such damages.

INDEMNITY

5.1

Should the Application Software be held by 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 becomes non-

infringing, or remove the software and refund the license charge pertaining thereto (less reasonable depredation for any period of use) and any transportation costs

separately paid by Customer. The foregoing states the entire liability of TE TECH for patent and copyright infringement by 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 combination not

furnished by TE TECH as a part of this transaction. As to any such use in such combination, or any improper or unauthorized use, installation, or operation of the Application

Software, TE TECH assumes no liability whatsoever for patent and copyright infringement and Customer will hold TE TECH harmless against any infringement claims arising

there from (including, but not limited to, reasonable attorney’s fees).

TERM AND TERMINATION

6.1

You may terminate the license granted hereunder at any time by 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 been destroyed.

6.2

TE TECH, upon thirty (30) days’ notice, may terminate this Agreement or any license hereunder if Customer fails to perform any obligation or undertaking to be

performed by 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 been 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 obligation to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges previously paid.