or on behalf of Purchaser or any third party
which include (or will include) claims such that practice of any of the claims
of the Patents conveyed in this Agreement would reasonably require a license
under any claim of such other patents.
6.
Miscellaneous
6.1.
Limitation on Consequential Damages. EXCEPT IN THE EVENT OF FRAUD BY
SELLER OR BREACH OF SELLER'S WARRANTIES IN SECTION 4, AND EXCEPT AS PROVIDED IN
SECTION 5.2 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF
PROFITS, OR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE THAT
THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING
CONSIDERATION UNDER THIS AGREEMENT.
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6.2.
Limitation of Liability.
6.2.1.
PURCHASER'S TOTAL FINANCIAL LIABILITY TO SELLER UNDER THIS AGREEMENT
SHALL BE: (a) THE PAYMENT OF FUNDS AS REQUIRED PURSUANT TO SECTION 3; and (b)
STIPULATED/ESTIMATED/FIXED CONSEQUENTIAL DAMAGES TO SELLER IN THE AMOUNT OF A
FURTHER $150,000 (IN ADDITION TO THE $150,000 PAID CONTEMPORANEOUSLY WITH
SIGNING THIS AGREEMENT, IF FOR ANY REASON PURCHASER FAILS TO MAINTAIN THE PATENT
RIGHTS AS REQUIRED PURSUANT TO SECTION 3.
6.2.2.
SELLER'S TOTAL LIABILITY
OF ANY KIND TO PURCHASER UNDER THIS AGREEMENT SHALL BE POSSIBLE REPAYMENT TO
PURCHASER OF JUST THE INITIAL $150,000 PAYMENT PREVIOUSLY PAID BY PURCHASER TO
SELLER, AS FURTHER EXPLAINED IN SECTION 3.2.1 ABOVE. AS EXPLAINED IN THAT
SECTION 3, THIS POTENTIAL LIABILITY OF SELLER TO REPAY THAT INITIAL $150,000
PAYMENT IS EXTINGUISHED FOREVER IF THE PATENT CLAIM LANGUAGE IS TIMELY CORRECTED
IN THE U.S. PATENT AND TRADEMARK OFFICE (AS DESCRIBED IN OTHER PORTIONS OF THIS
AGREEMENT), EITHER WITHIN 18 MONTHS OF THE EFFECTIVE DATE OF THIS AGREEMENT OR
WITHIN SUCH FURTHER TIME AS THE PARTIES MAY AGREE. EVEN WITHOUT SUCH CORRECTION
OF THE PATENT CLAIM LANGUAGE, PURCHASER MAY, AT ITS SOLE DISCRETION, ELECT TO
AFFIRM THIS AGREEMENT AND RETAIN THE PATENT RIGHTS AND THE CORRESPONDING DUTIES
TO PAY SELLER (thereby waiving its rights to rescind this Agreement, return the
Patents to Seller, and recoup any payments made pursuant to Section 3 of this
Agreement). WITHIN A REASONABLE TIME (NOT TO EXCEED 60 DAYS) OF RECEIVING
WRITTEN NOTICE FROM SELLER OF SELLER'S FAILURE TO CORRECT THE PATENT CLAIM
LANGUAGE, PURCHASER SHALL CONFIRM IN WRITING TO SELLER PURCHASER'S DECISION AS
TO WHETHER TO WAIVE OR EXERCISE THOSE RIGHTS (to rescind this Agreement, return
the Patents to Seller, and recoup any payments).
6.2.3.
SELLER'S LIABILITY
UNDER THIS AGREEMENT SHALL NOT BE AFFECTED BY (a) PURCHASER'S DECISIONS AS TO
WHETHER TO PURSUE THIRD PARTIES UNDER THE PATENT RIGHTS and/or (b) PURCHASER'S
SUCCESS (OR LACK THEREOF) IN ANY SUCH EFFORT TO PURSUE THIRD PARTIES UNDER THE
PATENT RIGHTS.
6.2.4.
AS TO LIABILITY TO THIRD PARTIES OR FOR REASONABLE
COSTS AND EXPENSES OF ANY AND ALL KINDS ASSOCIATED WITH PURSUING
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ANY SUCH THIRD PARTIES, PURCHASER HEREBY AGREES TO INDEMNIFY AND HOLD
HARMLESS SELLER. THE PARTIES AGREE THAT SUCH REASONABLE COSTS AND EXPENSES
INCLUDE, BY WAY