then been paid per Section 2.3,
reduced by prorating such Non-Recurring Engineering Charges on a thirty-six (36)
month straight-line depreciation method from the scheduled date of payment.
If
no such refund is required within thirty-six (36) months of the scheduled date
for the last payment under Section 2.3, no part of such cost will be refunded.
VTAL's obligation to a customer with respect to infringement shall be controlled
exclusively by the End User Agreement.
11.7.
INSURANCE.
DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF
THREE (3) YEARS THEREAFTER, EACH PARTY SHALL CARRY ADEQUATE INSURANCE TO COVER
ITS OBLIGATIONS HEREUNDER, PROVIDED, HOWEVER THAT IN NO EVENT SHALL ANY PRODUCT
LIABILITY INSURANCE COVERAGE BE LESS THAN FIVE MILLION DOLLARS ($5,000,000) PER
OCCURRENCE.
UPON REQUEST, EITHER PARTY SHALL PROVIDE THE OTHER PARTY WITH A
CERTIFICATE OF INSURANCE EVIDENCING THE INSURANCE COVERAGE REQUIRED BY THIS
SECTION 11.7.
12.
LIMITATION OF REMEDIES
12.1.
CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL EITHER PARTY'S LIABILITY
OF ANY KIND INCLUDE ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL
LOSS OR DAMAGE, EVEN IF THE OTHER PARTY SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
12.2.
DAMAGES LIMITATION.
SUBJECT TO ITS INDEMNIFICATION OBLIGATIONS
UNDER SECTIONS 11.5 AND 11.6, VTAL'S CUMULATIVE LIABILITY FOR DAMAGES TO EZEM
FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT INCLUDING NEGLIGENCE, SHALL BE LIMITED TO FOUR HUNDRED
THOUSAND U.S. DOLLARS ($400,000).
13.
CONFIDENTIALITY
13.1.
CONFIDENTIAL INFORMATION; TERM.
ALL CONFIDENTIAL INFORMATION SHALL
BE DEEMED CONFIDENTIAL AND PROPRIETARY TO THE PARTY DISCLOSING SUCH INFORMATION
HEREUNDER.
EACH PARTY MAY USE THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY
DURING THE TERM OF THIS AGREEMENT ONLY AS PERMITTED OR REQUIRED FOR THE
RECEIVING PARTY'S PERFORMANCE HEREUNDER.
THE RECEIVING PARTY SHALL NOT DISCLOSE
OR PROVIDE ANY CONFIDENTIAL INFORMATION TO ANY THIRD PARTY AND SHALL TAKE
REASONABLE MEASURES TO PREVENT ANY UNAUTHORIZED DISCLOSURE BY ITS EMPLOYEES,
AGENTS, CONTRACTORS OR CONSULTANTS DURING THE TERM HEREOF INCLUDING APPROPRIATE
INDIVIDUAL NONDISCLOSURE AGREEMENTS.
THE FOREGOING DUTY SHALL APPLY TO ANY
CONFIDENTIAL INFORMATION FOR A PERIOD OF FIVE (5) YEARS FROM THE DATE OF ITS
DISCLOSURE OR TWO YEARS FOLLOWING THE TERMINATION OF THIS AGREEMENT, WHICH EVER
IS LATER; PROVIDED THAT SUCH OBLIGATION SHALL CONTINUE INDEFINITELY AS TO THE
APPLIANCE; PROVIDED THAT IT IS OTHERWISE CONSIDERED CONFIDENTIAL INFORMATION
UNDER SECTION 13.2.
13.2.
EXCLUSIONS.
THE FOLLOWING SHALL NOT BE CONSIDERED CONFIDENTIAL
INFORMATION FOR PURPOSES OF THIS ARTICLE 13
(A)
INFORMATION WHICH IS OR BECOMES IN THE PUBLIC DOMAIN THROUGH NO
FAULT OR ACT OF THE RECEIVING PARTY;
(B)
INFORMATION WHICH WAS INDEPENDENTLY DEVELOPED BY THE RECEIVING
PARTY WITHOUT THE USE OF OR RELIANCE ON THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION;
(C)
INFORMATION WHICH WAS PROVIDED TO THE RECEIVING PARTY BY A THIRD
PARTY UNDER NO DUTY OF CONFIDENTIALITY TO THE DISCLOSING PARTY; OR
(D)
INFORMATION WHICH IS REQUIRED TO BE DISCLOSED BY LAW, PROVIDED,
HOWEVER, PROMPT PRIOR NOTICE THEREOF SHALL BE GIVEN TO THE PARTY WHOSE
CONFIDENTIAL INFORMATION IS INVOLVED.
14.
TRADEMARKS
14.1.
USE