positioning and navigation accuracy obtainable with the Software as stated in the Product or Software
documentation serves to provide only an estimate of achievable accuracy based on specifications provided by the
US Department of Defense for GPS positioning and DGPS service provider performance specifications, where
applicable.
10. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, AGJUNCTION MAKES NO
REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND TO LICENSEE, WHETHER VERBAL OR WRITTEN
AND HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND INCLUDING
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY, RELIABILITY OR THAT THE USE OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE AND HEREBY DISCLAIMS ALL REPRESENTATIONS,
WARRANTIES AND CONDITIONS ARISING AS A RESULT OF CUSTOM, USAGE OR TRADE AND THOSE ARISING
UNDER STATUTE.
11. LIMITS ON WARRANTY DISCLAIMER. Some jurisdictions do not allow the exclusion of implied warranties or
conditions, so some of the above exclusions may not apply to Licensee. In that case, any implied warranties or
conditions which would then otherwise arise will be limited in duration to ninety (90) days from the date of the
license of the Software or the purchase of the Product. The warranties given herein give Licensee specific legal rights
and Licensee may have other rights which may vary from jurisdiction to jurisdiction.
12. CHANGE TO WARRANTY. No employee or agent of AgJunction is authorized to change the warranty provided or
the limitation or disclaimer of warranty provisions. All such changes will only be effective if pursuant to a separate
agreement signed by senior officers of the respective parties.
13. WARRANTY CLAIM. In the event Licensee has a warranty claim Licensee must first check for and install all
Updates that are made available. The warranty will not otherwise be honored. Proof of purchase may be required.
AgJunction does not honor claims asserted after the end of the Warranty Period.
14. LICENSEE REMEDIES. In all cases which involve a failure of the Software to conform in any material respect to the
documentation during the Warranty Period or a breach of a warranty, AgJunction's sole obligation and liability, and
Licensee's sole and exclusive remedy, is for AgJunction, at AgJunction's option, to (a) repair the Software, (b)
replace the Software with software conforming to the documentation, or (c) if AgJunction is unable, on a reasonable
commercial basis, to repair the Software or to replace the Software with conforming software within ninety (90)
days, to terminate this Agreement and thereafter Licensee shall cease using the Software. AgJunction will also issue
a refund for the price paid by Licensee less an amount on account of amortization, calculated on a straight-line basis
over a deemed useful life of three (3) years.
15. LIMITATION OF LIABILITY. IN NO EVENT WILL AGJUNCTION BE LIABLE TO LICENSEE FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES INCLUDING ARISING IN RELATION TO ANY LOSS OF DATA,
INCOME, REVENUE, GOODWILL OR ANTICIPATED SAVINGS EVEN IF AGJUNCTION HAS BEEN INFORMED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE. FURTHER, IN NO EVENT WILL AGJUNCTION'S TOTAL CUMULATIVE
LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE TOTAL AMOUNT PAID BY
LICENSEE TO AGJUNCTION TO PURCHASE THE PRODUCT. THIS LIMITATION AND EXCLUSION APPLIES
IRRESPECTIVE OF THE CAUSE OF ACTION, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, MISREPRESENTATION OR ANY OTHER LEGAL
THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH.
16. LIMITS ON LIMITATION OF LIABILITY. Some jurisdictions do not allow for the limitation or exclusion of liability for
incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee and Licensee
may also have other legal rights which may vary from jurisdiction to jurisdiction.
17. BASIS OF BARGAIN. Licensee agrees and acknowledges that AgJunction has set its prices and the parties have
entered into this Agreement in reliance on the limited warranties, warranty disclaimers and limitations of liability set
forth herein, that the same reflect an agreed-to allocation of risk between the parties (including the risk that a
remedy may fail of its essential purpose and cause consequential loss), and that the same forms an essential basis
of the bargain between the parties. Licensee agrees and acknowledges that AgJunction would not have been able to
sell the Product at the amount charged on an economic basis without such limitations.
18. PROPRIETARY RIGHTS INDEMNITY. AgJunction shall indemnify, defend and hold harmless Licensee from and
against any and all actions, claims, demands, proceedings, liabilities, direct damages, judgments, settlements, fines,
penalties, costs and expenses, including royalties and attorneys' fees and related costs, in connection with or arising
out of any actual infringement of any third party patent, copyright or other intellectual property right by the Software
or by its use, in accordance with this Agreement and documentation, PROVIDED THAT: (a) AgJunction has the right
to assume full control over any action, claim, demand or proceeding, (b) Licensee shall promptly notify AgJunction
of any such action, claim, demand, or proceeding, and (c) Licensee shall give AgJunction such reasonable assistance
and tangible material as is reasonably available to Licensee for the defense of the action, claim, demand or
proceeding. Licensee shall not settle or compromise any of same for which AgJunction has agreed to assume
responsibility without AgJunction's prior written consent. Licensee may, at its sole cost and expense, retain separate
counsel from the counsel utilized or retained by AgJunction.
19. INFRINGEMENT. If use of the Software may be enjoined due to a claim of infringement by a third party then, at its
sole discretion and expense, AgJunction may do one of the following: (a) negotiate a license or other agreement so
that the Product is no longer subject to such a potential claim, (b) modify the Product so that it becomes non-
infringing, provided such modification can be accomplished without materially affecting the performance and
functionality of the Product, (c) replace the Software, or the Product, with non-infringing software, or product, of
equal or better performance and quality, or (d) if none of the foregoing can be done on a commercially reasonable
basis, terminate this license and Licensee shall stop using the Product and AgJunction shall refund the price paid by
Licensee less an amount on account of amortization, calculated on a straight-line basis over a deemed useful life of
three (3) years.
The foregoing sets out the entire liability of AgJunction and the sole obligations of AgJunction to Licensee in respect
of any claim that the Software or its use infringes any third party rights.
20. INDEMNIFICATION. Except in relation to an infringement action, Licensee shall indemnify and hold AgJunction
harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable fees of
lawyers and other professionals) arising out of or in connection with Licensee's use of the Product, whether direct or
indirect, including without limiting the foregoing, loss of data, loss of profit or business interruption.
SLite_UG_D1.book Page 42 Monday, December 23, 2013 2:14 PM
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