Table of Contents
Advertisement
10.
WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, HEMISPHERE 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 Hemisphere 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. Hemisphere 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, Hemisphere's sole obligation and liability, and Licensee's sole and exclusive
remedy, is for Hemisphere, at Hemisphere's option, to (a) repair the Software, (b) replace the Software with software conforming to
the documentation, or (c) if Hemisphere 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.
Hemisphere 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 HEMISPHERE 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 HEMISPHERE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. FURTHER,
IN NO EVENT WILL HEMISPHERE'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND,
EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO HEMISPHERE 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 Hemisphere 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 Hemisphere would not have been able to sell the Product at the amount charged on an economic basis without such limitations.
18.
PROPRIETARY RIGHTS INDEMNITY. Hemisphere 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) Hemisphere has the right to assume full control over any action, claim, demand or proceeding,
(b) Licensee shall promptly notify Hemisphere of any such action, claim, demand, or proceeding, and (c) Licensee shall give
Hemisphere 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 Hemisphere has agreed to assume
responsibility without Hemisphere's prior written consent. Licensee may, at its sole cost and expense, retain separate counsel from
the counsel utilized or retained by Hemisphere.
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, Hemisphere 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 be accomplished
without materially affecting the performance and functionality of the Product, (c) replace the Software, or the Product, with non-
infringing software, or product, of equal or better performance and quality, or (d) if none of the foregoing can be done on a
commercially reasonable basis, terminate this license and Licensee shall stop using the Product and Hemisphere shall refund 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.
The foregoing sets out the entire liability of Hemisphere and the sole obligations of Hemisphere to Licensee in respect of any claim
that the Software or its use infringes any third party rights.
20.
INDEMNIFICATION. Except in relation to an infringement action, Licensee shall indemnify and hold Hemisphere harmless from any
and all claims, damages, losses, liabilities, costs and expenses (including reasonable fees of lawyers and other professionals) arising
out of or in connection with Licensee's use of the Product, whether direct or indirect, including without limiting the foregoing, loss of
data, loss of profit or business interruption.
21.
TERMINATION. Licensee may terminate this Agreement at any time without cause. Hemisphere may terminate this Agreement on 30
days notice to Licensee if Licensee fails to materially comply with each provision of this Agreement unless such default is cured within
the 30 days. Any such termination by a party shall be in addition to and without prejudice to such rights and remedies as may be
available, including injunction and other equitable remedies. Upon receipt by Licensee of written notice of termination from
Advertisement
Table of Contents
