|
16
<br /> than as expressly set out in this Agreement. The only remedy available to Licensee for breach of warranty is for breach of
<br /> contract under the terms of this Agreement. This does not preclude a claim for fraud.
<br /> (b) TripSpark does not guarantee the privacy, security, authenticity, or non-corruption of any information transmitted
<br /> through the internet or any information stored in any system connected to the internet. TripSpark shall not be responsible
<br /> for any claims, damages, costs, or losses whatsoever arising out of or in any way related to Licensee's connection to or use
<br /> of the internet.
<br /> (c) TripSpark will not be liable to Licensee or any third party for any claims, expenses, damages, costs, or losses
<br /> whatsoever arising out of or in any way related to:
<br /> (i) Licensee's use of map or geographical data, owned by Licensee or any third party, in conjunction with the
<br /> Software or otherwise; or
<br /> (ii) Licensee's use of the Software insofar as such Software may be used to store, transmit, display, disclose or
<br /> otherwise use data or information which is considered private, confidential,proprietary, or otherwise exempt from
<br /> public disclosure under applicable law.
<br /> (d) TripSpark's entire liability and responsibility for any claims, damages, costs or losses whatsoever arising either
<br /> jointly or solely from or in connection with this Agreement or the use of the Software(whether or not in the manner permitted
<br /> by this Agreement) including, but not limited to claims for breach of contract, tort, misrepresentation, or otherwise, or the
<br /> development,modification or maintenance of the Software will be absolutely limited,in the aggregate,to the amount of the
<br /> license fee paid for the Software product or Services that is the subject of a claim.
<br /> (e) TripSpark will not be liable to the Licensee or any third party for losses or damages suffered by Licensee or any
<br /> third party which fall within the following categories:
<br /> i) punitive,indirect, incidental, or consequential damages,however arising,whether foreseeable or not;
<br /> ii) special damages even if TripSpark was aware of circumstances in which special damages could arise;
<br /> iii) loss of profits or revenue,anticipated savings,business opportunity,goodwill,or loss of information or data
<br /> of any kind.
<br /> (f) Paragraphs (d) and(e) do not apply to claims arising out of death or personal injury caused by either party's gross
<br /> negligence or fraudulent misrepresentation.
<br /> 14. Termination The license granted by this Agreement is effective until terminated.
<br /> (a) Either party may terminate this Agreement if the other party is in material breach of any term or condition of this
<br /> Agreement and fails to cure such default within thirty (30) days after receipt of written notice of such default. Without
<br /> limitation, the following are deemed material breaches under this Agreement: (i) Licensee fails to pay any amount when
<br /> due hereunder; (ii) Licensee becomes insolvent or any proceedings will be commenced by or against Licensee under any
<br /> bankruptcy, insolvency, or similar laws.
<br /> (b) If Licensee develops software that is competitive with the Software,or Licensee is acquired by or acquires an interest
<br /> in a competitor of TripSpark,TripSpark shall have the right to terminate this Agreement immediately.
<br /> (c) Should Licensee fail to pay any amount due under the Agreement,TripSpark reserves the right,in its sole discretion,
<br /> to remove Licensee's access to the Software without TripSpark's liability or further obligations to Licensee under the
<br /> Agreement, or otherwise until such time Licensee has met its payment obligations to TripSpark.
<br /> (d) Either party may terminate for convenience,in whole or in part,with ninety(90)days written notice.
<br /> (e) In the event Licensee terminates this Agreement for any reason, Licensee shall pay TripSpark for all license fees
<br /> and service fees then due, and all costs incurred up to and including the date of termination.
<br /> (f) If this Agreement is terminated, Licensee will immediately return to TripSpark all copies of the Software, the
<br /> Documentation and other materials provided to Licensee pursuant to this Agreement and will certify in writing to TripSpark
<br /> that all copies or partial copies of the Software,the Documentation and such other materials have been returned to TripSpark
<br />
|