for the cost of the audit.
4.
DISCLAIMER; EXCLUSIONS AND LIMITATIONS
OF LIABILITY.
4.1
Disclaimer.
THE LICENSED PROPERTY IS PROVIDED TO LICENSEE WITHOUT
WARRANTY OR CONDITION OF ANY KIND OTHER THAN THOSE WARRANTIES SET FORTH IN
SECTION 6.1.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF TITLE,
NONINFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR SUITABILITY
FOR ANY PARTICULAR PURPOSE (EVEN IF ON NOTICE OF SUCH PURPOSE), OR CUSTOM OR
USAGE IN THE TRADE.
LICENSOR DOES NOT WARRANT THAT ANY USE OF SUCH INTELLECTUAL
PROPERTY WILL BE ERROR-FREE OR UNINTERRUPTED.
4.2
Exclusions of Remedies; Limitation of Liability.
EXCEPT FOR
LIABILITY RELATED TO INDEMNIFICATION AND DEFENSE OBLIGATIONS, CONFIDENTIALITY
OBLIGATIONS, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES
FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,
REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS (WHETHER DEEMED DIRECT OR INDIRECT), COSTS OF DELAY, ANY FAILURE OF
DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION,
EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS
LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO
WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN
INEFFECTIVE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
HASBRO, INC. AND HASBRO INTERNATIONAL, INC. SHALL HAVE NO LIABILITY TO LICENSEE
OR ITS AFFILIATES.
FURTHER, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, LICENSOR'S TOTAL LIABILITY WITH
14
RESPECT TO EACH CLAIM UNDER SECTION 7.1(b) SHALL NOT EXCEED ONE MILLION DOLLARS.
4.3
Essential Basis of Agreement.
THE PARTIES ACKNOWLEDGE AND AGREE
THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS
ARTICLE 4 FORM AN ESSENTIAL BASIS OF THIS AGREEMENT, AND THAT, ABSENT ANY OF
SUCH DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE TERMS OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE
SUBSTANTIALLY DIFFERENT.
5.
TERM AND TERMINATION.
5.1
Term.
This Agreement shall commence on the Effective Date and,
shall continue in perpetuity for licenses related to the Licensed Property,
unless expiring sooner with respect to Third Party Licensed Property, and unless
earlier terminated pursuant to Section 5.2.
5.2
Termination for Cause.
Either Party may, at its option, terminate
this Agreement at any time by giving written notice to the other Party upon the
occurrence of any of the following events:
(a)
A Party fails or neglects to perform its material obligations or
covenants or otherwise breaches any material term or condition or this Agreement
if such default is not corrected within thirty (30) days after receiving written
notice from the other Party with respect to such default;
(b)
Termination occurs pursuant to Section 9.3.
5.3
Licensor may terminate this Agreement at any time by giving written
notice to the Licensee upon the occurrence of any of the following events:
(a)
Licensee fails to pay any