AND ACCEPTABLE TO THE LESSEE, III) THE LESSEE HAS EXAMINED AND IS
SATISFIED THAT EVERY ITEM OF PROPERTY IS SUITABLE FOR ITS PURPOSE, IV) THE
LESSEE,
TAKES THE PROPERTY AND EACH PART THEREOF "AS IS" AND "WHERE IS", V) THE
LESSOR HAS NOT MADE AND DOES NOT MAKE, AND HEREBY DISCLAIMS LIABILITY FOR, AND
LESSEE HEREBY WAIVES ALL RIGHTS AGAINST LESSOR RELATING TO, ANY AND ALL
WARRANTIES, REPRESENTATIONS OR OBLIGATIONS WHATSOEVER, EXPRESS OR IMPLIED,
ARISING BY APPLICABLE. LAW OR OTHERWISE, RELATING TO THE. PROPERTY, OR ANY PART
THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES, REPRESENTATIONS
OR OBLIGATIONS AS TO (1) THE DESCRIPTION, CONDITION, DESIGN, QUALITY OR
PERFORMANCE OF THE PROPERTY OR QUALITY OR CAPACITY OF MATERIALS OR WORKMANSHIP
IN THE PROPERTY; (2) ITS MERCHANTABILITY OR FITNESS OR SUITABILITY FOR A
PARTICULAR PURPOSE. WHETHER OR NOT DISCLOSED TO LESSOR; (3) THE ABSENCE OF
LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE (4) THE ABSENCE OF ANY
INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT OR THE LIKE; AND (5) THE
ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT. It is agreed that all
such risks incident to the matters described in this Section 11a, as between the
Lessor and the Lessee are to be borne by the Lessee. If the Property or Software
is nor properly installed, does not function as represented or warranted by
original owner/seller/supplier/ licensor, or is unsatisfactory for any reason,
Lessee shall make any claim on account thereof solely against original
owner/seller/supplier/licensor and shall nevertheless pay all sums payable under
the Lease, lessee hereby waiving the right to make any such claims against
Lessor. Lessor shall not be liable to Lessee for any loss, damage or expense of
any kind or nature caused, directly or indirectly, by the Property or the use,
possession or maintenance thereof, or the repair, service or adjustment thereof,
or by any delay for failure to provide any such maintenance, repair, service or
adjustment, or by any interruption of service or loss of use thereof (including
without limitation, Lessee's use of or right to use any Software) or for any
loss of business howsoever caused.
b.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE LEASE, LESSOR
SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LESSEE OR ANY THIRD PARTY, FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR
RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, WHETHER IN AN ACTION BASED ON
CONTRACT, TORT INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL.
THEORY, INCLUDING WITHOUT LIMITATION, LOSS (IF ANTICIPATED PROFITS, OR BENEFITS
OF USE OR LOSS OF BUSINESS, EVEN IF LESSOR IS APPRISED OF THE LIKELIHOOD OF SUCH
DAMAGES OCCURRING.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF
ANY LEASE WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES
OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE FROM ANY
OTHER PROVISION AND IS A SEPARABLE. AND INDEPENDENT ELEMENT OF RISK ALLOCATION
AND IS INTENDED TO BE ENFORCED AS SUCH.
c.
Lessor assigns