claim, provided, that 1) End User notifies AirTrack promptly in writing of the
claim, 2) AirTrack controls the defense or settlement of the claim, and 3) End
User cooperates fully with AirTrack in such defense or settlement. All notices
of a claim should be sent to AirTrack, Inc., Legal Department, 200 West
Monroe Street, Chicago, IL 60606.
7.2 In the defense or settlement of any such claim, AirTrack may, at its option,
1) procure for End User the right to continue using the AirTrack Product, 2)
modify the AirTrack Product so that it becomes non-infringing, 3) replace the
AirTrack Product with an equivalent product not subject to such claim, or 4)
provide End User an opportunity to return the AirTrack Product and receive a
refund of the purchase price paid, less a reasonable allowance for use.
7.3 AirTrack shall have no liability to End User for claims of infringement based
upon 1) the use of any AirTrack Product in combination with any product
which AirTrack has not either furnished or authorized for use with such
AirTrack Product 2) the use of any AirTrack Product designed, manufactured,
or modified to the specifications of End User, or 3) End User's modification of
the AirTrack Product without written authorization from AirTrack.
7.4 THE FOREGOING STATES AIRTRACK’S COMPLETE AND ENTIRE
OBLIGATION CONCERNING CLAIMS OF PATENT, COPYRIGHT, OR
OTHER INTELLECTUAL PROPERTY INFRINGEMENT, CANCELS AND
SUPERCEDES ANY PRIOR AGREEMENTS, WHETHER ORAL OR
WRITTEN, BETWEEN THE PARTIES CONCERNING SUCH CLAIMS, AND
WILL NOT BE MODIFIED OR AMENDED BY ANY PAST,
CONTEMPORANEOUS, OR FUTURE AGREEMENTS OR DEALINGS
BETWEEN THE PARTIES, WHETHER ORAL OR WRITTEN, EXCEPT AS
SET FORTH IN A FUTURE WRITING SIGNED BY BOTH PARTIES.
8. Limitation Of Liability.
EXCEPT AS PROVIDED IN SECTION 7, AIRTRACK SHALL NOT BE LIABLE
FOR ANY CLAIMS AGAINST END USER BY ANY OTHER PARTY. IN NO
EVENT SHALL AIRTRACK'S LIABILITY FOR DAMAGES, IF ANY, WHETHER
BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, STRICT LIABILITY, WARRANTY, OR ANY OTHER BASIS, EXCEED
THE PRICE OR FEE PAID BY END USER FOR THE AIRTRACK PRODUCT.
UNDER NO CIRCUMSTANCES SHALL AIRTRACK BE LIABLE TO END USER
OR ANY THIRD PARTY FOR LOST PROFITS, LOST DATA, INTERRUPTION
OF BUSINESS OR SERVICE, OR FOR ANY OTHER SPECIAL,
CONSEQUENTIAL, CONTINGENT, INDIRECT, INCIDENTAL, PUNITIVE,
EXEMPLARY, OR OTHER SIMILAR DAMAGES, EVEN IF AIRTRACK HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Government Restricted Rights; International
Use.
9.1 Use, duplication, or disclosure of the Software by the U.S. Government is
subject to the restrictions for computer software developed at private expense
as set forth in the U.S. Federal Acquisition Regulations at FAR 52.227-
14(g), or 52.227-19 orin the Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013(c)(1)(ii), whichever is applicable.
9.2 If End User is using the AirTrack Product outside of the United States, End
User must comply with the applicable local laws of the country in which the
AirTrack Product is used, with U.S. export control laws, and with the English
language version of this Agreement. The provisions of the "United Nations
Convention on International Sale of Goods" shall not apply to this Agreement.
10. Termination.
10.1Either party may terminate this Agreement or any license granted under this
Agreement at any time upon written notice if the other party breaches any
provision of this Agreement.
10.2Upon termination of this Agreement, End User immediately shall cease using
any non-embedded software and shall return to AirTrack or destroy all non-
embedded software covered by this Agreement, and shall furnish AirTrack
with a certificate of compliance with this provision signed by an officer or
authorized representative of End User. For embedded software, End User
agrees to sign a waiver prepared by AirTrack concerning further use of the
embedded Software. End User's resumed or continued use of the embedded
Software after termination shall constitute End User's agreement to be bound
by the terms and conditions of this Agreement for such use.
11. General Provisions.
11.1 Entire Agreement; Amendment. This document contains the entire agreement
between the parties relating to the licensing of the Software and supersedes all prior
or contemporaneousagreements, written or oral, between the partiesconcerning the
licensing of the Software. This Agreement may not be changed, amended, or
modified except by written document signed by AirTrack.
