OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR, EXCEPT AS STATED IN THIS AGREEMENT, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, CYBERARTS DOES NOT WARRANT THAT (I)
THE LICENSED PRODUCT PROVIDED UNDER THIS AGREEMENT MEETS ANY GAMBLING LAWS,
RULES, AND/OR REGULATIONS AND PERFORMS ANY AGE VERIFICATION; (II) THE LICENSED
PRODUCT WILL MEET WPT'S REQUIREMENTS OR (III) THE LICENSED PRODUCT WILL BE ERROR
FREE AND/OR OPERATE WITHOUT INTERRUPTION. SOME STATES AND JURISDICTIONS DO NOT
ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY
TO WPT.
8.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY OTHER THIRD
PARTY) FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR
SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THE LICENSED
PRODUCT, SERVICES, OR THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER OR
NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
EXCEPT FOR A BREACH OF SECTION 5, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER
PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED FEES PAID BY WPT TO CYBERARTS AND
FREE FROM ALL CONTINGENCIES, IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING
THE ACCRUAL OF ANY CLAIM.
9.
INDEMNIFICATION.
9.1
INDEMNIFICATION. EACH PARTY AT ITS OWN EXPENSE SHALL INDEMNIFY, DEFEND AND
HOLD THE OTHER PARTY FREE AND HARMLESS FROM ANY AND ALL CLAIMS, DAMAGES, LOSSES,
COSTS, ACTIONS AND EXPENSES, INCLUDING ATTORNEYS' AND EXPERTS' FEES ("INDEMNITY
CONDITION"), ARISING FROM ANY CLAIM OR CONTENTION (A) ARISING UNDER THIS
AGREEMENT OR (B) THE BREACH OF WARRANTIES, REPRESENTATIONS AND OBLIGATIONS UNDER
THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CYBERARTS, AT
ITS OWN EXPENSE SHALL INDEMNIFY, DEFEND AND HOLD WPT FREE AND HARMLESS, AGAINST
ANY CLAIM THAT THE LICENSED PRODUCT AND/OR SERVICES INFRINGES ANY U.S. PATENT,
BERNE CONVENTION COPYRIGHT OR MISAPPROPRIATES ANY THIRD PARTY'S TRADE SECRET.
A)
DEFENSE. EACH PARTY SHALL (1) GIVE PROMPT WRITTEN NOTICE OF ANY SUCH
CLAIM, SUIT, EXPENSE OR THE LIKE IN ACCORDANCE WITH THE PROVISIONS OF SECTION
12.1, (2) PERMIT THE OTHER PARTY TO CONTROL AND DIRECT THE DEFENSE OR SETTLEMENT
OF ANY SUCH CLAIM, SUIT OR THE LIKE, PROVIDED, HOWEVER THAT (A) THE OTHER PARTY
SHALL NOT ENTER INTO ANY SETTLEMENT AGREEMENT THAT WOULD RESULT IN ANY ADMISSION
BY A PARTY
5
or payment by the party without such party's prior written consent and (b) such
party may at its election participate in the defense of such claim, suit or the
like through separate counsel at its own expense, and (3) provides the other
party all reasonable assistance (at the expense of such party) in connection
with the defense or settlement of any such claim or suit.
B)
OPTIONS. IF THE LICENSED PRODUCT OR SERVICES IS, OR IN CYBERARTS' OPINION
IS LIKELY TO BE, HELD TO BE INFRINGING, CYBERARTS, AT ITS EXPENSE AND IN ITS
SOLE DISCRETION, MAY: (I) PROCURE THE RIGHT TO ALLOW WPT TO CONTINUE TO USE THE
LICENSED PRODUCT