receipt by VSUS; provided that,
prior to any trip outside of Israel at the request and for the benefit of VSUS,
an
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amount equal to ViVaVu's good faith estimate of the reasonable expenses of such
trip, plus half of the estimated time charges therefor, shall be paid in advance
by VSUS at least ten (10) business days prior to such trip. Interest shall
accrue on all such amounts not paid by VSUS at a rate, calculated upon the
unpaid balance, of the lesser of (i) l% per month or (ii) the highest rate
allowed by applicable law. ViVaVu may refuse to provide Services hereunder while
any amounts due for prior Services remain unpaid, and no such refusal shall
constitute a breach hereof.
3.
WARRANTY AND INDEMNITY
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES, AND ANY
SOFTWARE DELIVERED IN ACCORDANCE THEREWITH, AND ANY AMENDMENTS OR IMPROVEMENTS
TO THE SOURCE CODE, ARE BY THEIR NATURE "AD HOC" AND THEREFORE NO WARRANTY OR
ASSURANCE OF SUCCESS CAN BE PROVIDED. THEREFORE, ViVaVu MAKES NO WARRANTIES,
EITHER EXPRESS OR IMPLIED, AS TO THE SUCCESS OF ANY SERVICES OR THE UTILITY,
ROBUSTNESS, EFFICICIOUSNESS OR SATISFACTORY PERFORMANCE OF ANY SOFTWARE
RESULTING THEREFROM OR OTHERWISE FURNISHED BY ViVaVu; AND IN NO EVENT, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SHALL ViVaVu BE LIABLE FOR ANY IMPLIED
WARRANTY WITH RESPECT TO SUCH SERVICES AND/OR SOFTWARE, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE. THIS DISCLAIMER SHALL BE IN ADDITION TO, AND NOT SUPERSEDING, ANY
DISCLAIMERS REGARDING THE HOSTING SERVICES CONTAINED ON ViVaVu's WEB SITE IN
CONNECTION THEREWITH.
4.
LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
INDIRECT, OR THIRD PARTY DAMAGES (INCLUDING LOST PROFITS OR SAVINGS, BUSINESS
INTERRUPTION, LOSS OF DATA, OR SIMILAR CLAIMS), WHETHER IN AN ACTION IN CONTRACT
OR IN TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ViVaVu's LIABILITY FOR DAMAGES
HEREUNDER, IF ANY, EXCEED THE REVENUES ACTUALLY PAID TO ViVaVu BY VSUS FOR
SERVICES HEREUNDER.
5.
CONFIDENTIALITY AND NONDISCLOSURE OBLIGATIONS
(a) Obligations. During the term of this Agreement and for five (5) years
after the termination or expiration of this Agreement, neither party hereto
shall disclose to any third party or use any confidential technical, business or
market information disclosed to it by the other party hereto in the course of
performance of the Services (collectively, "Confidential Information"),
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except as expressly permitted in this Agreement, and will take all reasonable
measures to maintain the confidentiality of all Confidential Information in its
possession or control, which will in no event be less than the measures it uses
to maintain the confidentiality of its own information of similar importance
(b) Exceptions. "Confidential Information" does not include information
that: (i) is in or enters the public domain without breach of this Agreement;
(ii) a party lawfully receives from a third party without restriction on
disclosure and without