Wafian HR-F1 Setup And User Manual - page 25
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monetary damages would be an inadequate remedy. Licensee agrees that Wafian may, in addition to any other
remedy available under this agreement or at law, obtain injunctive or other appropriate equitable relief for any
such actual or threatened breach, and Wafian may take any other measures necessary to prevent unauthorized
use.
4. NO WARRANTIES. Wafian expressly disclaims any warranty for the Software. Software and any related
documentation are provided “as is” without warranty of any kind, either express or implied, including, without
limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The
entire risk arising out of use or performance of the Software remains with Licensee.
5. NO LIABILITY FOR DAMAGES. In no event shall Wafian be liable for any damages whatsoever (including,
without limitation, damages for loss of business profits, business interruption, loss of business information, or any
other pecuniary loss) arising out of use of or inability to use the Software, even if Wafian has been advised of the
possibility of such damages. UNDER NO CIRCUMSTANCES SHALL WAFIAN OR ITS RESELLERS BE LIABLE TO
LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUE, BUSINESS
INTERRUPTION, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES
OR LOSSES, WHETHER FORESEEABLE OR NOT. IN NO EVENT WILL WAFIAN BE LIABLE FOR ANY DAMAGES IN
EXCESS OF THE AMOUNT WAFIAN RECEIVED FROM LICENSEE FOR A LICENSE TO USE THE SOFTWARE, EVEN
IF WAFIAN SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Licensee agrees to defend and indemnify Wafian and hold Wafian harmless from all claims, losses, damages,
complaints, or expenses connected with or resulting from Licensee's business operations. Wafian shall defend
Licensee against (or, at Wafian’s option, settle) any and all third party claims made or brought against Licensee
as a result of the Software’s infringement of a third party’s patent, copyright or trade secret and shall indemnify
and hold Licensee harmless from any and all final judgments, damages, costs, liabilities or expenses, including
reasonable attorney’s fees, suffered or incurred by Licensee in connection with any such claim. Licensee agrees
that Wafian shall be relieved of its obligations under this Section unless Licensee notifies Wafian of such claim
within ten (10) days after Licensee’s receipt thereof and gives Wafian the sole authority to defend and settle such
claim, the relevant information then in Licensee’s possession and, at Wafian’s expense, reasonable assistance for
Wafian to settle and/or defend any such claim. If the Software becomes the subject of such an infringement
claim, then Wafian may, at its option and expense (a) procure for Licensee the right to continue to use the
Software; (b) replace or modify the Software with other suitable and reasonably equivalent Software or parts
thereof so that the Software becomes non-infringing; or (c) if it is not commercially reasonable to take the
actions specified in items (a) or (b), terminate this agreement and refund the license fees previously paid to
Wafian for the applicable Software, less a pro rata amount attributable to Licensee’s prior use of the Software.
Notwithstanding the foregoing provisions, Wafian assumes no liability for any infringement claims with respect to
the modification of the Software by Licensee or other parties when the infringement would not have occurred but
for such modification, or the combination of the Software with any other product that is not a Wafian product,
when the infringement would not have occurred but for such combination. THE FOREGOING PROVISIONS OF
THIS SECTION STATE THE SOLE AND ENTIRE LIABILITY AND OBLIGATIONS OF WAFIAN AND THE EXCLUSIVE
REMEDY OF LICENSEE WITH RESPECT TO ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY
THE SOFTWARE OR WAFIAN.
7. Wafian has the right to terminate this agreement and Licensee's right to use this Software upon any material
breach by Licensee. Upon any such termination, Licensee must return or destroy all copies of the Software. No
refunds or credits will be due.
8. This agreement is the entire and exclusive agreement between Wafian and Licensee regarding this Software.
This agreement replaces and supersedes all prior negotiations, dealings, and agreements between Wafian and
Licensee regarding this Software, and supersedes any terms on Licensee purchase orders or similar ordering
documents.
9. License acknowledges that Licensee purchased a license to use the Software as part of an overall hardware
and software solution that includes system components from third parties. Use of the Wafian HR-F1 system