AirTrack Product will be a material breach of this Agreement. However,
AirTrack may elect not to terminate this Agreement or the granted licenses,
but instead may elect to notify End User that End User is deemed to have
ordered and accepted a license for each breaching use. End User shall pay
AirTrack the applicable list price for such licenses as of the date of such
breach.
3.2 End User shall not sell, assign, sublicense, distribute, lend, rent, give, or
otherwise transfer the AirTrack Product to any third party unless such third
party agrees with AirTrack in writing to be bound by the terms and conditions
of this Agreement. Any such transfer of the AirTrack Product absent such
agreement shall be null and void.
3.3 End User may obtain support for Software from AirTrack at AirTrack’s
standard support fees and under AirTrack’s standard support terms and
conditions in effect at the time the support is requested.
4.
Intellectual Property.
End User acknowledges that the Software constitutes valuable trade secrets of
AirTrack or AirTrack’s third party licensors and that the Software is protected by
intellectual property laws and treaties. The license set forth in this Agreement
does not transfer to End User any ownership of AirTrack’s or its third party
licensors' copyrights, patents, trademarks, service marks, trade secrets, or other
intellectual property rights and End User shall have no right to commence any
legal actions to obtain such rights. End User shall not remove, modify, or take any
other action that would obscure any copyright, trademark, patent marking, or other
intellectual property notices contained in or on the AirTrack Product.
5. Proprietary Information.
5.1 End User acknowledges that Proprietary Information is the confidential,
proprietary, and trade secret property of AirTrack and AirTrack’s third party
licensors and End User acquires no right or interest in any Proprietary
Information.
5.2 End User shall not disclose, provide, or otherwise make available the
Proprietary Information of AirTrack or its third party licensors to any person
other than End User's authorized employees or agents who are under
confidentiality agreement, and End User shall not use the Proprietary
Information other than in conjunction with use of the AirTrack Product
exclusively for End User's internal business purposes. End User shall take
steps to protect the Proprietary Information no less securely than if it were
End User's own intellectual property.
5.3 The provisions of this Proprietary Information Section shall survive and
continue for five (5) years after the termination of this Agreement.
6. Limited Warranty.
6.1 AirTrack warrants that, under normal use and operation, the AirTrack Product
will conform substantially to the applicable Documentation for the period
specified in the Documentation. During this period, for all reproducible non-
conformities for which AirTrack has been given written notice, AirTrack will
use commercially reasonable efforts to remedy nonconformities verified by
AirTrack. End User agrees to supply AirTrack with all reasonably requested
information and assistance necessary to help AirTrack in remedying such
nonconformities. For all defects reported to AirTrack within the warranty
period, AirTrack’s liability is limited to providing End User with one copy of
corrections or responding to End User's problem reports according to
AirTrack's standard assistance practices. AirTrack does not warrant that the
product will meet End User's requirements or that use of the product will be
uninterrupted or error free, or that AirTrack’s remedial efforts will correct any
nonconformance. This limited warranty does not cover any product that have
been subjected to damage or abuse, whether intentionally, accidentally, or by
neglect, or to unauthorized repair or unauthorized installation, and shall be
void if End User modifies the product, uses the product in any manner other
than as established in the Documentation, or if End User breaches any of the
provisions of this Agreement.
6.2 EXCEPT AS PROVIDED IN THIS AGREEMENT, THE AIRTRACK
PRODUCT IS PROVIDED "AS IS" AND AIRTRACK MAKES NO
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR
ORAL, WITH RESPECT TO THE PRODUCT, AND SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
7. Infringement.
7.1 AirTrack will defend End User against any claim in a lawsuit that the AirTrack
Product furnished hereunder infringe a United States patent or copyright of a
third party and AirTrack will pay any damages finally awarded against End
User by a court of competent jurisdiction that are attributable to such claim or
will pay End User's part of any settlement that is attributable to such.
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