FITNESS FOR A PARTICULAR
PURPOSE. IN ADDITION, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE LICENSED ARTICLES AND LICENSOR CONTENT ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NEITHER PARTY MAKES ANY
REPRESENTATION OR WARRANTY THAT ANY SERVICE OR LICENSED ARTICLES OR LICENSOR
CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED,
THAT THE SERVICES PROVIDED WILL BE FREE OF VIRUSES OR OTHER HARMFUL EFFECTS, OR
THAT ANY LICENSED ARTICLES OR LICENSOR CONTENT WILL NOT INFRINGE UPON THE RIGHTS
OF ANY THIRD PARTY.
(b)
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER PARTY WILL
BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF BUSINESS OR PROFITS, OR REPLACEMENT
COSTS, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL
DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT,
INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
(c)
SUBJECT TO THE PARTIES INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10
AND EXCEPT FOR LICENSEE'S OBLIGATION TO PAY ROYALTIES, UNDER NO CIRCUMSTANCES
SHALL EITHER PARTY'S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO
THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY CLAIMS HEREUNDER,
REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED
ON CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY,
INFRINGEMENT OR ANY OTHER LEGAL THEORY, EXCEED TEN THOUSAND DOLLARS ($10,000);
PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE LIMITATION SET FORTH HEREIN LIMIT
A PARTY'S RIGHT TO OBTAIN EQUITABLE RELIEF AGAINST THE OTHER PARTY. EACH PARTY
ACKNOWLEDGES THAT THE LIMITATION OF LIABILITY SET OUT IN THIS SECTION 11(c)
REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS
(KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.
12. CONFIDENTIALITY
(a) Confidential Information.
(i)
"Confidential Information" shall mean the terms of this Agreement (but not
the existence thereof), all information provided to Licensor hereunder and any
non-public, proprietary information designated by the party disclosing such
information (the "Disclosing Party") as confidential information to the party
receiving such information (the "Receiving Party").
9
(ii)
Each party agrees not to reveal or disclose any Confidential Information
for any purpose (except as permitted by the following sentence) to any third
party, or to use any Confidential Information for any purpose other than as
contemplated hereby, in each case, without the prior written consent of the
Disclosing Party, provided however, each party may disclose certain Confidential
Information, on a need-to-know basis to certain authorized employees or
management, agents, attorneys, accountants and other third party professionals
under privilege. In the event that a Receiving Party wishes to disclose
Confidential Information to a third party, it may do so only with the express
written consent of the Disclosing Party and only if the third party agrees to
abide by the terms of this Section 12(a).
(iii)
Notwithstanding anything contained herein to the contrary, Confidential
Information shall not include information which: (A) at or prior to