Page 719 - ProShow Producer Manual

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GIVE CUSTOMER SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY HAVE OTHER RIGHTS
WHICH VARY FROM STATE TO STATE. PHOTODEX SHALL NOT BE LIABLE FOR ANY
DELAY, FAILURE IN PERFORMANCE OR INTERRUPTION OF THE SOFTWARE RESULTING
DIRECTLY OR INDIRECTLY FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL.

8. REMEDIES AND LIMITATION OF LIABILITY.

a. Exclusive Remedy. Photodex's entire liability and Customer's exclusive remedy
for any breach of this Agreement or for any other liability relating to the Software
shall be, at Photodex's option from time to time exercised subject to applicable law,
(i) return of the Software Fee, or (ii) replacement of the Software that is returned to
Photodex with a copy of Customer's invoice or sales receipt. Customer will receive
the remedy elected by Photodex without charge, except that Customer is responsible
for any expenses Customer may incur, including, for example, the cost of shipping
the Software to Photodex. This remedy is not available to Customer if failure of the
Software has resulted from accident, abuse, misapplication, abnormal use or a virus.
b. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL
THEORY, INCLUDING TORT, STATUTE, CONTRACT, OR OTHERWISE, SHALL PHOTODEX
OR ITS LICENSORS OR THEIR AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER
PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS, DATA, GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF PHOTODEX
WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER MAY NOT BRING
ANY CLAIM OR ACTION, REGARDLESS OF THE FORM THEREOF, ARISING FROM OR
RELATING TO THE SOFTWARE OR THIS AGREEMENT, MORE THAN ONE (1) YEAR AFTER
THE DATE OF THE EVENT FROM WHICH THE CLAIM OR ACTION ARISES OR ACCRUES.

9. INDEMNIFICATION.

CUSTOMER WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS PHOTODEX,
INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS,
SUPPLIERS, INFORMATION PROVIDERS, AND AGENTS FROM AND AGAINST ALL
LOSSES, CLAIMS, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING
REASONABLE ATTORNEYS' FEES, RESULTING FROM ANY VIOLATION OF THIS
AGREEMENT OR ANY ACTIVITY RELATED TO THE SOFTWARE (INCLUDING NEGLIGENT
OR WRONGFUL CONDUCT) BY CUSTOMER OR BY ANY OTHER PERSON ACCESSING
THE SOFTWARE AT CUSTOMER'S INSTRUCTION.