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6. A. LIMITED WARRANTIES - MTI EXPRESSLY WARRANTS THE SOFTWARE PROVIDED TO
END-USER LICENSEE AS SET FORTH HEREIN. MTI MAKES NO OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). In addition, the following
shall constitute the sole and exclusive remedies of END-USER LICENSEE for any breach by
MTI of its warranty hereunder.
MTI warrants that the media upon which the SOFTWARE are provided to END-USER
LICENSEE will be free from defects in workmanship and materials for a period of one (1)
year from the date of shipment to the END-USER LICENSEE. Should any such defects be
found and reported during such one year period MTI will send END-USER LICENSEE
replacement media.
MTI does not warrant that any software comprising the SOFTWARE will be free from errors
in program logic, clerical program preparation and transcription. The foregoing warranty
shall not apply to defects resulting from: (1) unauthorized modification; (2) END-USER
supplied software or interfacing; (3) accident, transportation, neglect, misuse, alteration,
modification, or enhancement by anyone other than MTI; (4) the failure to provide a
suitable installation environment; (5) uses other than the specific purpose for which the
Software is designed; (6) use on any systems other than specified MTI hardware; or (7)
failure to incorporate any update(s) previously released by MTI.
B. DISCLAIMER - EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE IS PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. END-USER LICENSEE BEARS ALL RISK RELATING TO QUALITY
AND PERFORMANCE OF THE SOFTWARE. MTI does not warrant the level of performance
of the SOFTWARE, nor does MTI warrant that the SOFTWARE will meet END-USER
LICENSEE’s requirements nor that the SOFTWARE will operate without interruption or be
error free. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION,
INSTALLATION, USE, EFFICIENCY AND SUITABILITY OF THE SOFTWARE AND/OR ANY
CUSTOMIZATION OF SAME AND MTI SHALL HAVE NO LIABILITY THEREFOR. IN NO EVENT
SHALL MTI BE LIABLE TO END-USER LICENSEE FOR ANY DAMAGES RESULTING FROM OR
RELATED TO ANY FAILURE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO LOSS
OF DATA, OR DELAY BY MTI IN THE DELIVERY OF THE SOFTWARE. EXCEPT TO THE EXTENT
PROVIDED IN SECTION 6.D. “INDEMNIFICATION BY MTI”, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL MTI BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL,
OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR FOR ANY OTHER TYPE OF DAMAGE,
INCLUDING BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM OR RELATED TO ANY
FAILURE OF THE SOFTWARE and/or CONFIGURATION TOOLS, LOSS OF DATA, OR DELAY
by MTI IN THE DELIVERY OF THE SOFTWARE AND/OR CONFIGURATION TOOLS OR IN THE
PERFORMANCE OF THIS AGREEMENT, EVEN IF MTI HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF. MTI’s LIABILITY HEREUNDER TO END-USER LICENSEE, IF ANY,
SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS. No action, regardless of form,
arising out of the transactions under this AGREEMENT may be brought by either party more
than one (1) year after the cause of action has accrued.
C. Limitation of Liability - END-USER LICENSEE's exclusive remedy for breach by MTI of
the above limited warranty shall be replacement of any defective medium returned to MTI
within the warranty period. END-USER LICENSEE agrees not to hold MTI responsible for
any losses or damages arising out of any acts or omissions of MTI related to the
provision of the SOFTWARE to END-USER LICENSEE, including but not limited to MTI’s