which case the
Parties consent to exclusive jurisdiction and venue in the Supreme Court of New
York located in New York County of New York (the "Alternate Forum"). All Parties
irrevocably consent to personal jurisdiction and waives the defense of forum non
conveniens in the Forum, or Alternate Forum, if applicable, with respect to
itself and its Affiliates. Process may be served on all Parties in the manner
authorized by applicable law or court rule.
8.2 LIMITATION ON CONSEQUENTIAL DAMAGES. EXCEPT IN THE CASE OF FRAUD, NO PARTY
SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS, OR ANY SPECIAL, CONSEQUENTIAL
OR INCIDENTAL DAMAGES, HOWEVER CAUSED, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES
ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL DAMAGES WERE AN ESSENTIAL
ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
8.3 LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF FRAUD, WITHOUT WAIVING ANY
OTHER RIGHTS OF THE PARTIES, INCLUDING ANY RIGHT TO SEEK SPECIFIC PERFORMANCE OR
SEEK OTHER EQUITABLE RELIEF, NO PARTY'S TOTAL LIABILITY (INCLUDING PAYMENT
OBLIGATIONS) UNDER THIS
AGREEMENT SHALL EXCEED THE PAYMENT AMOUNTS REQUIRED PURSUANT TO SECTIONS 3.4.
THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON
Microsoft Confidential
Page 6
POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER
THIS AGREEMENT.
8.4 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. THE PARTIES TO THIS AGREEMENT
DO NOT MAKE ANY REPRESENTATION OR WARRANTY EXCEPT FOR THEIR RESPECTIVE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7, AND EACH PARTY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET
FORTH IN SECTION 7, THE PARTIES DO NOT GIVE THE OTHER PARTIES ANY ASSURANCES (A)
REGARDING THE PATENTABILITY OF ANY CLAIMED INVENTION IN, OR THE VALIDITY OF, ANY
PATENT OR (B) THAT MANUFACTURE, USE, SALE, OFFERING FOR SALE, IMPORTATION,
EXPORTATION OR OTHER DISTRIBUTION OF ANY PRODUCT OR METHOD DISCLOSED AND CLAIMED
IN ANY PATENT WILL NOT CONSTITUTE AN INFRINGEMENT OF THE INTELLETUAL PROPERTY
RIGHTS OF OTHER PERSONS. EXCEPT AS
SPECIFICALLY PROVIDED IN SECTION 7 HEREOF, THE PATENTS ARE SOLD "AS IS" WITHOUT
ANY FURTHER REPRESENTATION OR WARRANTY.
8.5 Compliance with Laws. Notwithstanding anything contained in this Agreement
to the contrary, the obligations of the Parties shall be subject to all laws,
present and future, of any government having jurisdiction over the Parties and
this transaction, and to orders, regulations, directions or requests of any such
government.
8.6 SALE. PURCHASER ACKNOWLEDGES THAT IT HAS HAD SUFFICENT OPPORTUNITY TO
PERFORM, AND HAS PERFORMED, APPROPRIATE DUE DLILIGENCE REGARDING THE PATENTS TO
THE SATISFACTION OF PURCHASER, AND ACCORDINGLY, ALL SALES ARE FINAL AFTER
EXECUTION OF THIS
AGREEMENT, PROVIDE THAT THE FOREGOING SHALL NOT LIMIT ANY LIABILITY RESULTING
FROM A BREACH OF THIS AGREEMENT.
8.7 Confidentiality of Terms. The mere existence of this Agreement (including,
without limitation, the title of this Agreement, the identification of the
Parties, and that the Patents were assigned hereunder by Seller to Purchaser) is
not confidential. Also, the Parties may