9.
CONFIDENTIALITY AND CONTROL OF THE SOFTWARE.
The SOFTWARE, all
associated documentation, and all copies are secret and confidential to Kaltech Enterprises and shall
be retained under the effective control of the End User during the period of this License. The End
User shall take all measures necessary to preserve confidentiality and secrecy in the SOFTWARE
during the period of this License and after its termination, however such termination may arise.
10.
INDEMNITIES AND LIMITATION OF LIABILITY.
(a) Subject to 9(b) below, Kaltech
Enterprises warrants to the End User that the Software as supplied by Kaltech Enterprises will not
infringe any copyright, patent, or other intellectual property right of any third party. Conditionally
upon the End User’s promptly giving notice to Kaltech Enterprises of any claim of alleged
infringement and allowing Kaltech Enterprises to have sole control of negotiations on, and any
defense of the claim, Kaltech Enterprises shall in its discretion and at its own cost wither compromise
or defend the claim and shall hold the End User harmless from any resulting final judgment, order, or
settlement. Kaltech Enterprises shall have the right to replace or change the SOFTWARE so as to
avoid infringement and require the End User to accept a license to use such replaced or changed
SOFTWARE in substitution for this License, provided that the SOFTWARE as substituted is
substantially suitable for the End User’s utilization. (b) Kaltech Enterprises’s maximum liability to
the End User under 9(a) above shall not exceed the License fees actually paid by the End User for the
SOFTWARE. If Kaltech Enterprises becomes aware of a potential claim under 9(a) above, Kaltech
Enterprises shall be entitled then or at anytime thereafter to discharge its liabilities (including
potential, accruing, and accrued liabilities) to the End User under 9(a) above by requiring the End
User to surrender this License and to cease use of the SOFTWARE upon Kaltech Enterprises’s paying
to the End User a sum equivalent to the maximum amount of Kaltech Enterprises’s liability as stated
above. (c) GENERAL LIMITATION OF LIABILITY AND INDEMNITIES.
KALTECH
ENTERPRISES’S MAXIMUM LIABILITY RELATED TO ANY OF THE SOFTWARE SHALL NOT
EXCEED THE LICENSE FEES ACTUALLY PAID BY THE END USER FOR THE SOFTWARE.
FOR BELGIUM, FRANCE, IRELAND, AND THE NETHERLANDS: IN NO EVENT SHALL
KALTECH ENTERPRISES BE LIABLE TO THE END USER, EXCEPT IN RESPECT OF (a) DEATH,
PERSONAL INJURY, OR DAMAGE TO PROPERTY CAUSED BY KALTECH ENTERPRISES’S
NEGLIGENCE OR (b) KALTECH ENTERPRISES’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF KALTECH
ENTERPRISES’S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY
REPRESENTATION OR IMPLIED WARRANTY, CONDITION, OR OTHER TERM OR ANY DUTY
AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS
OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH
ANY ACT OR OMISSION OF KALTECH ENTERPRISES RELATING TO THE USE OR INABILITY
TO USE THE PRODUCT BY THE END USER.
FOR GREECE: IN NO EVENT SHALL KALTECH ENTERPRISES BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY KALTECH ENTERPRISES’S FRAUD OR GROSS NEGLIGENCE, FOR AN AMOUNT IN
EXCESS OF THE MAXIMUM AMOUNT OF KALTECH ENTERPRISES’S LIABILITY AS STATED
IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY,
CONDITION, OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS
AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF
PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHERWISE)
ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF KALTECH
ENTERPRISES RELATING TO THE USE OR INABILITY TO USE THE PRODUCT BY THE END
USER.
FOR ITALY: IN NO EVENT SHALL KALTECH ENTERPRISES BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY KALTECH ENTERPRISES’S FRAUD OR GROSS NEGLIGENCE OR VIOLATION OF A DUTY
ARISING FORM APPLICABLE ORDINE PUBBLICO RULES FOR AN AMOUNT IN EXCESS OF
THE MAXIMUM AMOUNT OF KALTECH ENTERPRISES’S LIABILITY AS STATED IN 9(b)
ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION, OR
OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR
ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHERWISE) ARISING OUT OF OR
IN CONNECTION WITH ANY ACT OR OMISSION OF KALTECH ENTERPRISES RELATING TO
THE USE OR INABILITY TO USE THE PRODUCT BY THE END USER.
FOR DENMARK, FINLAND AND NORWAY: IN NO EVENT SHALL KALTECH ENTERPRISES BE
LIABLE TO THE END USER, EXCEPT (i) IN RESPECT OF DEATH OR PERSONAL INJURY
CAUSED BY KALTECH ENTERPRISES’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR
(ii) IF SUCH LIABILITY LIMITATION IS UNREASONABLE UNDER ALL RELEVANT
CIRCUMSTANCES , FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF
KALTECH ENTERPRISES’S LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY
REPRESENTATION OR IMPLIED WARRANTY, CONDITION, OR OTHER TERM OR ANY DUTY
AT LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS
OR DAMAGE (WHETHER FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH
ANY ACT OR OMISSION OF KALTECH ENTERPRISES RELATING TO THE USE OR INABILITY
TO USE THE PRODUCT BY THE END USER.
FOR PORTUGAL: IN NO EVENT SHALL KALTECH ENTERPRISES BE LIABLE TO THE END
USER, EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY
CAUSED BY KALTECH ENTERPRISES’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
FOR AN AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT OF KALTECH ENTERPRISES’S
LIABILITY AS STATED IN 9(b) ABOVE, BY REASON OF ANY REPRESENTATION OR IMPLIED
WARRANTY, CONDITION, OR OTHER TERM OR ANY DUTY AT LAW, OR UNDER THE
TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL LOSS OR DAMAGE (WHETHER
FOR LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR
OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF
KALTECH ENTERPRISES RELATING TO THE USE OR INABILITY TO USE THE PRODUCT BY
THE END USER.
FOR SPAIN: IN NO EVENT SHALL KALTECH ENTERPRISES BE LIABLE TO THE END USER,
EXCEPT IN RESPECT OF DEATH, DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED
BY KALTECH ENTERPRISES’S BAD FAITH CONDUCT, FOR AN AMOUNT IN EXCESS OF THE
MAXIMUM AMOUNT OF KALTECH ENTERPRISES’S LIABILITY AS STATED IN 9(b) ABOVE, BY
