SOLE DISCRETION, PROVIDE EITHER AN UP-DATE
OF THE AFFECTED ITEM OR AN ALTERNATIVE METHOD WHICH HAS SUBSTANTIALLY THE SAME
FUNCTIONALITY. NEWCARDIO'S AFOREMENTIONED WARRANTY OBLIGATION IS CONDITIONAL
UPON: (1) LICENSEE GIVING NEWCARDIO WRITTEN NOTICE OF ANY SUBSTANTIAL
MALFUNCTION PROMPTLY AND IN ANY EVENT WITHIN THE WARRANTY PERIOD; (2) THE SAID
MALFUNCTION BEING REPEATEDLY DEMONSTRABLE; AND (3) NO UNAUTHORIZED ADDITION TO
OR MODIFICATION OF THE SOFTWARE HAVING BEEN UNDERTAKEN BY LICENSEE OR A THIRD
PARTY, PROVIDED THAT SUCH THIRD PARTY IS NOT ACTING ON BEHALF OF NEWCARDIO.
ANY
ERROR CORRECTIONS, BUG FIXES, PATCHES OR OTHER UPDATES USED TO IN CONNECTION
WITH THE WARRANTY SHALL BE THE SOLE PROPERTY OF NEWCARDIO.
10.4
NEWCARDIO REPRESENTS THAT IT HAS THE RIGHT TO MARKET, DISTRIBUTE, MAINTAIN AND
SUPPORT THE SOFTWARE AND/OR PRODUCT LICENSED TO LICENSEE WITHOUT INFRINGING OR
MISAPPROPRIATING ANY INTELLECTUAL PROPERTY RIGHT, PRIVACY RIGHT OR OTHER
PROPRIETARY RIGHT OF ANY PERSON OR ENTITY.
10.5
NEWCARDIO REPRESENTS AND WARRANTS THAT (A) THE SERVICES WILL BE PERFORMED IN
ACCORDANCE WITH THIS AGREEMENT, (B) ALL PERSONNEL PERFORMING SERVICES ARE FULLY
QUALIFIED (BY EDUCATION, TRAINING AND EXPERIENCE) TO PROPERLY PERFORM THEIR
TASKS UNDER THIS AGREEMENT, (C) NEWCARDIO, ITS OPERATIONS AND ALL FACILITIES
USED IN PERFORMANCE OF THE SERVICES ARE AND WILL REMAIN IN COMPLIANCE WITH ALL
APPLICABLE LAWS (INCLUDING WITHOUT LIMITATION, REGULATIONS PERTAINING TO cGCP
AND FDA APPROVALS), (D) THERE ARE NO PENDING OR ACTIVE INVESTIGATIONS, INQUIRIES
OR LITIGATION PERTAINING TO NEWCARDIO, ITS OPERATIONS OR ANY OF THE FACILITIES
USED IN PERFORMANCE OF THE SERVICES AND, TO THE BEST OF NEWCARDIO'S KNOWLEDGE,
THERE IS NO BASIS ON WHICH ANY SUCH INVESTIGATION, INQUIRY OR LITIGATION COULD
BE BASED AND (E) NEITHER NEWCARDIO, NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS,
NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS IS, OR HAS BEEN,
DEBARRED OR SUBJECT TO DEBARMENT, DISQUALIFIED OR BANNED BY THE FDA OR
EQUIVALENT REGULATORY AUTHORITY, AND NO PERSON OR ENTITY WHICH HAS BEEN
DEBARRED, DISQUALIFIED OR BANNED BY THE FDA OR EQUIVALENT REGULATORY AUTHORITY
(OR INDICTED FOR A CRIME OR OTHERWISE ENGAGED IN CONDUCT FOR WHICH IT COULD BE
DEBARRED) WILL BE USED IN ANY CAPACITY IN CONNECTION WITH PERFORMANCE OF THE
SERVICES.
NEWCARDIO SHALL IMMEDIATELY NOTIFY LICENSEE IN WRITING IF ANY SUCH
INDIVIDUAL OR ENTITY IS DEBARRED OR BECOMES SUBJECT TO ANY DEBARMENT
INVESTIGATION, INQUIRY OR LITIGATION.
5 of 11
10.6
EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, NO OTHER WARRANTIES ARE MADE BY
EITHER PARTY AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.7
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY REASON
WHATSOEVER, WHETHER IN CONTRACT OR TORT, FOR ANY LOSS RESULTING FROM THE USE OF
THE SOFTWARE, WHETHER INTENDED OR FORESEEABLE, OR FOR ANY FORM OF INDIRECT,
SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS, DAMAGE OR EXPENSE
(INCLUDING, BUT NOT LIMITED TO, LOSS DUE TO INABILITY TO OBTAIN DATA, LOSS OF
BUSINESS, OR LOSS OF ANTICIPATED PROFITS) IN CONNECTION WITH