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9 LIMITATION
OF LIABILITY.
To the maximum
extent permitted
by applicable
law, for any claim arising out of Lexmark's
limited
warranty,
or for any other claim whatsoever
related to the subject matter of this Agreement,
Lexmark's
and its suppliers'
liability for
all types of damages,
regardless
of the form of action or basis (including
contract,
breach,
estoppel,
negligence,
misrepresentation,
or tort), shall be limited to the greater of $5,000 or the money paid to Lexmark or its Authorized
remarketers
for the license hereunder
for the Software
Program
that caused
the damages
or that is the subject
matter of, or is directly related to, the cause of action.
IN NO EVENT
WILL LEXMARK,
ITS SUPPLIERS,
SUBSIDIARIES,
OR RESELLERS
BE LIABLE FOR ANY SPECIAL,
INCIDENTAL,
INDIRECT,
EXEMPLARY,
PUNITIVE,
OR CONSEQUENTIAL
DAMAGES
(INCLUDING
BUT NOT LIMITED
TO
LOST PROFITS
OR REVENUES,
LOST SAVINGS,
INTERRUPTION
OF USE OR ANY LOSS OF, INACCURACY
IN, OR DAMAGE
TO, DATA OR RECORDS,
FOR CLAIMS
OF THIRD
PARTIES,
OR DAMAGE
TO REAL OR TANGIBLE
PROPERTY,
FOR LOSS
OF PRIVACY
ARISING
OUT OR IN ANY WAY RELATED
TO THE USE OF OR INABILITY
TO USE THE SOFTWARE
PROGRAM,
OR OTHERWISE
IN CONNECTION
WITH ANY PROVISION
OF THIS LICENCE
AGREEMENT),
REGARDLESS
OF THE NATURE
OF THE CLAIM,
INCLUDING
BUT NOT LIMITED
TO BREACH
OF WARRANTY
OR CONTRACT,
TORT (INCLUDING
NEGLIGENCE
OR STRICT
LIABILITY),
AND EVEN IF LEXMARK,
OR ITS SUPPLIERS,
AFFILIATES,
OR REMARKETERS
HAVE
BEEN ADVISED
OF THE POSSIBILITY
OF SUCH DAMAGES,
OR FOR ANY CLAIM BY YOU BASED ON A THIRD-PARTY
CLAIM,
EXCEPT
TO THE EXTENT
THIS EXCLUSION
OF DAMAGES
IS DETERMINED
LEGALLY
INVALID.
THE FOREGOING
LIMITATIONS
APPLY
EVEN IF THE ABOVE-STATED
REMEDIES
FAIL OF THEIR ESSENTIAL
PURPOSE.
10 TERM. This License Agreement
is effective
unless terminated
or rejected.
You may reject or terminate
this license at any time by
destroying
all copies of the Software
Program, together
with all modifications,
documentation,
and merged portions
in any form, or
as otherwise
described
herein. Lexmark
may terminate
your license upon notice if you fail to comply with any of the terms of this
License Agreement.
Upon such termination,
you agree to destroy all copies of the Software
Program
together with all modifications,
documentation,
and merged portions
in any form.
11 TAXES.
You agree that you are responsible
for payment
of any taxes including,
without
limitation,
any goods and services
and
personal
property taxes, resulting
from this Agreement
or your Use of the Software
Program.
12 LIMITATION
ON ACTIONS.
No action,
regardless
of form, arising out of this Agreement
may be brought by either party more than
two years after the cause of action has arisen, except as provided
under applicable
law.
13 APPLICABLE
LAW. This Agreement
is governed
by the laws of the Commonwealth
of Kentucky,
United States of America.
No
choice of law rules in any jurisdiction
shall apply. The UN Convention
on Contracts
for the International
Sale of Goods shall not apply.
14 UNITED
STATES
GOVERNMENT
RESTRICTED
RIGHTS.
The Software
Program has been developed
entirely at private expense.
Rights of the United States Government
to use the Software
Program is as set forth in this Agreement
and as restricted
in DFARS
252.227-7014
and in similar FAR provisions
(or any equivalent
agency regulation
or contract
clause).
15 CONSENT
TO USE OF DATA.
You agree that Lexmark,
its affiliates,
and agents may collect and use information
you provide in
relation to support services
performed
with respect to the Software
Program
and requested
by you. Lexmark
agrees not to use this
information
in a form that personally
identifies
you except to the extent necessary
to provide such services.
16 EXPORT
RESTRICTIONS.
You may not (a) acquire,
ship, transfer,
or reexport,
directly or indirectly,
the Software
Program
or any
direct product therefrom,
in violation
of any applicable
export laws or (b) permit the Software
Program
to be used for any purpose
prohibited
by such export
laws, including,
without
limitation,
nuclear, chemical,
or biological
weapons
proliferation.
17 AGREEMENT
TO CONTRACT
ELECTRONICALLY.
You and Lexmark agree to form this License Agreement
electronically.
This
means that when you click the "Agree"
or "Yes" button on this page or use this product,
you acknowledge
your agreement
to these
License
Agreement
terms and conditions
and that you are doing so with the intent to "sign" a contract with Lexmark.
18 CAPACITY
AND AUTHORITY
TO CONTRACT.
You represent
that you are of the legal age of majority
in the place you sign this
License
Agreement
and, if applicable,
you are duly authorized
by your employer
or principal to enter into this contract.
19 ENTIRE AGREEMENT.
This License Agreement
(including
any addendum
or amendment
to this License Agreement
that is included
with the Software
Program)
is the entire agreement
between
you and Lexmark relating to the Software
Program. Except as otherwise
provided
for herein, these terms and conditions
supersede
all prior or contemporaneous
oral or written
communications,
proposals,
and representations
with respect to the Software
Program
or any other subject matter covered
by this License Agreement
(except
to the extent such extraneous
terms do not conflict with the terms of this License Agreement,
any other written
agreement
signed
by you and Lexmark
relating to your Use of the Software
Program).
To the extent any Lexmark
policies or programs
for support
services
conflict with the terms of this License Agreement,
the terms of this License Agreement
shall control.
217
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