FOR MORE THAN SIX (6) MONTHS.
(D)
IF VTAL SO ELECTS DUE TO A LEGAL ACTION, AS SPECIFIED IN ARTICLE
11.6 ABOVE.
(E)
IF EZEM SO ELECTS ANY TIME AFTER SIX MONTHS FOLLOWING COMMENCEMENT
OF A LEGAL ACTION, AS SPECIFIED IN ARTICLE 11.6 ABOVE; PROVIDED THAT AS OF SUCH
TIME THERE SHALL HAVE BEEN NO RESOLUTION TO SUCH LEGAL ACTION AS CONTEMPLATED BY
SECTION 11.6.
(F)
BY THE MUTUAL WRITTEN CONSENT OF BOTH PARTIES.
16.3.
RIGHTS AND OBLIGATIONS ON TERMINATION.
IN THE EVENT OF TERMINATION
OF THIS AGREEMENT FOR ANY REASON, THE PARTIES SHALL HAVE THE FOLLOWING RIGHTS
AND OBLIGATIONS:
(A)
NEITHER PARTY SHALL BE RELEASED FROM THE OBLIGATION TO MAKE
PAYMENT OF ALL AMOUNTS THEN OR THEREAFTER DUE AND PAYABLE;
(B)
THE RIGHTS OF ANY CUSTOMER OF EZEM WHO HOLDS A VALID AND BINDING
END USER AGREEMENT FOR THE APPLIANCE PRIOR TO THE EFFECTIVE DATE OF SUCH
TERMINATION SHALL NOT BE AFFECTED;
(C)
INDEMNIFICATION RIGHTS AND OBLIGATION UNDER SECTIONS 3.2, 11.5 AND
11.6, AND THE PARTIES' RIGHTS AND OBLIGATIONS UNDER ARTICLES 10 AND 11 SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT; AND
(D)
EZEM SHALL RETURN ALL COPIES OF THE APPLIANCE AND ANY OTHER ITEMS
OF CONFIDENTIAL INFORMATION TO VTAL AND, IF APPLICABLE, SHALL ERASE ALL COPIES
OF THE APPLIANCE FROM ITS COMPUTER SYSTEMS AND SHALL CERTIFY IN WRITING TO VTAL
THAT IT HAS DONE SO, EXCEPT THAT EZEM MAY RETAIN THOSE COPIES OF THE APPLIANCE
AND ANY INFORMATION OR DATA RELATING THERETO IN ORDER TO PROVIDE ADEQUATE
CUSTOMER SERVICE FOR THE THEN CURRENT INSTALLED BASE OF ITS APPLIANCE CUSTOMERS.
16.4.
NO COMPENSATION.
IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT
UNDER ARTICLE 16.2 (A), (C), (D) AND (E), SUBJECT TO SECTION 16.3(A), NEITHER
PARTY SHALL OWE ANY COMPENSATION TO THE OTHER PARTY FOR LOST PROFITS, LOST
OPPORTUNITIES, GOODWILL OR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES
AS
A RESULT OF OR ARISING FROM SUCH TERMINATION.
17.
FORCE MAJEURE
17.1.
DEFINITION.
"FORCE MAJEURE" SHALL MEAN ANY EVENT OR CONDITION
BEYOND THE REASONABLE CONTROL OF EITHER PARTY WHICH PREVENTS, IN WHOLE OR IN
MATERIAL PART, THE PERFORMANCE BY ONE OF THE PARTIES OF ITS OBLIGATIONS
HEREUNDER OR WHICH RENDERS THE PERFORMANCE OF SUCH OBLIGATIONS SO DIFFICULT OR
COSTLY AS TO MAKE SUCH PERFORMANCE COMMERCIALLY UNREASONABLE.
WITHOUT LIMITING
THE FOREGOING, THE FOLLOWING SHALL CONSTITUTE EVENTS OR CONDITIONS OF FORCE
MAJEURE:
ACTS OF STATE OR GOVERNMENTAL ACTION, RIOTS, DISTURBANCE, WAR,
STRIKES, LOCKOUTS, SLOWDOWNS, PROLONGED SHORTAGE OF ENERGY OR OTHER SUPPLIES,
EPIDEMICS, FIRE, FLOOD, HURRICANE, TYPHOON, EARTHQUAKE, LIGHTNING AND EXPLOSION,
OR ANY REFUSAL OR FAILURE OF ANY GOVERNMENTAL AUTHORITY TO GRANT ANY EXPORT
LICENSE LEGALLY REQUIRED.
17.2.
NOTICE.
UPON WRITTEN NOTICE TO THE OTHER PARTY, A PARTY AFFECTED
BY AN EVENT OF FORCE MAJEURE SHALL BE SUSPENDED WITHOUT ANY LIABILITY ON ITS
PART FROM THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT FOR
THE OBLIGATION TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER.
SUCH NOTICE SHALL
INCLUDE A DESCRIPTION OF THE NATURE OF THE EVENT OF FORCE MAJEURE, AND ITS CAUSE
AND