and competence equal to the level of professionalism and
competence such services were provided by Licensee with respect to the Software
during the six (6) months prior to the Effective Date. OTHER THAN AS SET FORTH
ABOVE, THE SOFTWARE AND THE MAINTENANCE AND SUPPORT SERVICES ARE PROVIDED "AS
IS," AND LICENSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SOFTWARE OR RELATED DOCUMENTATION, AND THE MAINTENANCE AND
SUPPORT SERVICES, INCLUDING THEIR QUALITY, PERFORMANCE, MERCHANTABILITY,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND THE MAINTENANCE AND SUPPORT
SERVICES ARE WITH LICENSEE, AND LICENSOR PROVIDES NO GUARANTEE THAT THE SOFTWARE
WILL MEET LICENSEE'S REQUIREMENTS, BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION
OR BE FREE FROM INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, NEITHER LICENSOR NOR ITS
AFFILIATES, THIRD-PARTY VENDORS OR THEIR SUPPLIERS SHALL HAVE ANY RESPONSIBILITY
TO MAINTAIN THE SOFTWARE TO SUPPLY ANY CORRECTIONS, UPDATES OR RELEASES IN
CONNECTION THEREWITH.
6. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY ACT
OR OMISSION IN THE ABSENCE OF WILLFUL MALFEASANCE OR GROSS NEGLIGENCE BY THE
OTHER PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY
SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES OR FOR LOST PROFIT, REVENUE, AND LICENSOR SHALL
NOT BE LIABLE FOR LICENSEE'S USE OF DATA IN CONNECTION WITH THE PROGRAMS OR
DOCUMENTATION PROVIDED BY LICENSOR, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER FOR ALL CLAIMS WHATSOEVER
ARISING OUT OF THE LICENSES GRANTED HEREUNDER, INCLUDING ANY CAUSE OF ACTION
SOUNDING IN CONTRACT, WARRANTY, TORT OR STRICT LIABILITY SHALL NOT EXCEED (1)
$100 FOR ANY CAUSE OF ACTION ARISING ON OR PRIOR TO THE EFFECTIVE DATE, OR
(2) THE FEES ACTUALLY RECEIVED BY THE LICENSOR UNDER THIS AGREEMENT OVER THE
COURSE OF ONE FISCAL YEAR PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
7. ACKNOWLEDGEMENT. BOTH PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS AGREEMENT,
INCLUDING THE LICENSE FEES, REFLECT IN PART THE PARTIES' RELIANCE ON THE
LIMITATIONS AND DISCLAIMERS CONTAINED IN PARAGRAPHS 5 THROUGH 6 HEREOF
8. TRADEMARKS. Licensee acknowledges that nothing herein has granted Licensee
any right, title or interest in and to the marks CORIS or WRMS.
5
9. INDEMNIFICATION. Each party shall indemnify, defend and hold harmless the
other party, and its affiliates, its and their employees, officers, directors,
agents, successors and assigns, and third party vendors or their suppliers
(collectively, the "Indemnified Parties"), from and against, any and all
liabilities, obligations, damages, deficiencies, losses, costs and expenses,
including reasonable attorneys' fees and other expenses incurred in the
investigation and defense of any claim (as hereinafter defined), in each case as
incurred and finally awarded by a court or arbitrator of competent jurisdiction,
based on any