SALE AGREEMENTTERMS AND CONDITIONS
7.1 Notwithstanding statements provided to Buyer by NCS pursuant to an acknowledgment or the terms of any written contract, or unless otherwise specified by NCS in writing (“Warranty Period”), no warranty is provided for product(s) sold or otherwise provided to Buyer by NCS hereunder. NCS coordinates the manufacturer’s warranty for such product(s), if any, to the Buyer without recourse to NCS. NCS does not adopt any manufacturer warranty. EXCEPT FOR AN EXPRESS WARRANTY OTHERWISE FURNISHED BY NCS UNDER A SEPARATE DOCUMENT OR THE EXPRESS WARRANTIES SET FORTH ABOVE IN THIS SECTION 4.1., THERE ARE NO WARRANTIES, EITHER EXPRESS OR IMPLIED. NCS DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICLE PURPOSE, AGAINST INFRINGEMENT AND THE LIKE, AND ANY AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT SHALL NCS BE LIABLE FOR LOSS OF USE OR FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES FOR PERSONAL INJURIES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIMS BASED ON PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT IS NOT RELYING ON NCS’S SKILL OR JUDGMENT TO SELECT OR FURNISH SUITABLE GOODS FOR BUYER. NCS MERELY COORDINATES THE WARRANTIES OFFERED BY THE MANUFACTURER OF THE PRODUCT(S) SOLD AND DOES NOT ADOPT SUCH WARRANTIES, NOR DOES IT CREATE ANY ADDITIONAL WARRANTIES. NOTHING HEREIN SHALL BE CONSTRUED AS NCS ADOPTING ANY MANUFACTURER WARRANTY. NCS shall not be responsible for delays in performance or claims for damages whatsoever resulting from delays at manufacturing plants, transportation, inability to obtain materiel or services, or due to strike, fires, flood, storms, war, insurrections, riots, any government regulation, order act or instruction, or any other circumstance beyond NCS’s reasonable control, and Buyer’s acceptance of goods and/or services shall constitute a waiver of any claims for damages due to such delay.
7.2. PRODUCT(S) AND SERVICES PROVIDED BY NCS ARE NOT DESIGNED, INTENDED OR AUTHORIZED FOR USE IN ANY LIFE SUPPORT OR OTHER APPLICATION WHERE PRODUCT(S) FAILURE COULD CAUSE OR CONTRIBUTE TO PERSONAL INJURY OR SUBSTANTIAL PROPERTY DAMAGE. IF BUYER OR ANY OF ITS DIRECT OR INDIRECT CUSTOMERS APPLIES ANY PRODUCT(S) OR SERVICE PURCHASED OR LICENSED FROM NCS TO ANY SUCH UNINTENDED OR UNAUTHORIZED USE, BUYER SHALL INDEMNIFY AND HOLD NCS AND ITS RESPECTIVE SUPPLIERS, HARMLESS AGAINST ALL CLAIMS, COSTS, DAMAGES AND EXPENSES ARISING, DIRECTLY OR INDIRECTLY, OUT OF ANY SUCH UNINTENDED USE, EVEN IF SUCH CLAIM ALLEGES THAT NCS OR ANY OTHER PERSON OR ENTITY WAS NEGLIGENT IN DESIGNING OR MANUFACTURING THE PRODUCT(S).
8.1. “Software” means all computer programs and associated documentation provided directly or indirectly by NCS to or for Buyer, and every copy of such programs and documentation so provided or subsequently made. Any Software provided or obtained pursuant to an acknowledgment is not sold, but is licensed, on a nonexclusive, nontransferable basis, without the right sublicense only for installation and use on the NCS hardware equipment with which such Software is provided by NCS, and subject to any other restrictions which may be designed in NCS’s product(s) description for the Software. No title, ownership, or intellectual property rights of any kind are transferred to any license. All Software, and all copyrights, trademarks, patents, trade secrets and other intellectual property rights pertaining to the Software are the property of NCS and/or its suppliers. Unless otherwise agreed to in writing and signed by an authorized officer of NCS, Software programs shall be provided in machine-readable object code form only. The licensee shall not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code form any Software, shall not modify, merge, adapt, create derivative works based on, or disclose, any Software, and shall not copy or reproduce and Software except as may be permitted in any other license agreement pertaining to the Software. Any third-party supplier from whom NCS has acquired rights to license and Software is an intended third-party beneficiary of the provisions of this Section 5.1.
8.2. All trademarks, service marks, trade names, logos, or other words or symbols identifying any product(s), NCS services, or NCS’s business are and will remain the exclusive property of NCS or its suppliers or licensors. No license is granted with respect thereto. NCS shall exclusively own all rights, title, interest in, and to any and all patents, copyrights, mask word rights, trademarks, trade secrets, know-how, and any and all other forms of intellectual property, as well as any and all inventions, works of authorship, algorithms, ideas, methods, improvements, and mask works, whether or not patentable, copyrightable, or otherwise protectable, which are developed, created, conceived, or reduced to practice by NCS itself, jointly with others, or on NCS’s behalf, in the course of or in arising out of work done pursuant to an acknowledgment except as expressly provided in this Terms of Sale Agreement, no license is granted by NCS expressly, by implication, by estoppel or otherwise, under any patent, trademark, copyright, mask work right, trade secret, or other intellectual property right. The sale of any product(s) by NCS shall not in any way confer upon Buyer, or upon anyone claiming under Buyer, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of NCS or others covering or relating to any combination, machine or process in which such product(s) is or might be used, or to any process or method of making such a product(s).
13.1 FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS SECTION 10, REFERENCES TO “NCS” SHALL BE DEEMED TO INCLUDE NCS TECHNOLOGIES, INC. AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, AND SUPPLIERS OF ALL OF THEM (PROVIDED, HOWEVER, THAT THIS SENTENCE SHALL NOT BE UNDERSTOOD OR CONSTRUED AS AUTHORIZING A CAUSE OF ACTION AGAINST, OR AS THE IMPOSITION OF ANY DUTY OR LIABILITY ON, ANY OF SUCH DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, OR SUPPLIERS); AND “DAMAGES” SHALL BE DEEMED TO REFER COLLECTIVELY TO ALL INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
13.2. NCS’S ENTIRE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDIES AGAINST NCS FOR ANY DAMAGES CAUSED BY ANY PRODUCT(S) DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY WORK, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE: (a) FOR DELAYS IN DELIVERY, THE REMEDY SET FORTH IN SECTION 3; (b) FOR NONCONFORMITY, DEFECT, OR FAILURE IN ANY PRODUCT(S) OR WORK PERFORMED, THE REMEDY SET FORTH IN SECTION 4; (c ) FOR INFRINGEMENT, THE REMEDIES SET FORTH IN SECTION 6; (d) FOR CLAIMS OTHER THAN SET FORTH ABOVE, NCS’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES WHICH ARE PROVEN, BUT IN NO EVENT TO EXCEED THE LESSER OF $100,000 OR THE CUMULATIVE AMOUNT PAID BY BUYER TO NCS PURSUANT TO THE ACKNOWLEDGMENT UP TO THE TIME THE CLAIM AROSE.
13.3. IN NO EVENT SHALL NCS BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR FOR LOST PROFITS, SAVINGS, OR REVENUES OF ANY KIND; OR FOR ANY ACTUAL DAMAGES IN EXCESS OF $100,000; REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT; NEGLIGENCE OF NCS; STRICT LIABILITY; BREACH WARRANTY; OR OTHERWISE; WHETHER OR NOT ANY REMEDY OF BUYER IS HELD TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT NCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.