Aetrex GPS Shoes Manual do utilizador - Página 18

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MERChANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR

PURPOSE. OMNILINk ShALL hAvE NO LIABILITY WhATSOEvER AS A RESULT OF

ThE DEvICE(S) BEING LOCATED IN AN AREA NOT COvERED BY APPROPRIATE

WIRELESS COvERAGE, OR IF ThE DEvICE FAILS TO ESTABLISh A CONNECTION

WITh TRACkING PLAN ChECk-IN SERvICES, OR SERvICES ARE DISABLED DUE TO

ANY NETWORk RELATED ISSUES.

9.4 DISCLAIMER OF WARRANTIES. ThE MANUFACTURER'S WARRANTY PASSED

ON BY OMNILINk TO YOU, IF ANY, ShALL BE IN LIEU OF ANY OThER WARRANTY,

ExPRESS OR IMPLIED, INCLUDING, WIThOUT LIMITATION, ANY IMPLIED WARRANTY

OF MERChANTABILITY, NONINFRINGEMENT OF ThIRD PARTY RIGhTS OR FITNESS

FOR A PARTICULAR PURPOSE.

10. INDEMNITY

10.1 Indemnity. Omnilink agrees, at its own expense, to defend or, at its option, to

settle, any claim or action brought against You to the extent it is based on a claim that

the Devices and/or Tracking Plan Check-In services directly infringe any United States

patent, copyright or trademark of a third party, and Omnilink will indemnify and hold You

harmless from and against any losses, damages, and expenses (including reasonable

attorneys' fees) that are attributable to such claim or action and are assessed against

You in a final judgment. Omnilink shall have the foregoing obligation only if You provide

Omnilink with: (i) a prompt written request for indemnification and defense in such claim

or action; (ii) sole control and authority over the defense and settlement thereof; and,

(iii) all available information, assistance, and authority reasonably necessary to settle

and defend any such claim or action. Omnilink shall not be responsible and shall not

compensate You for any attorneys' fees or other expenses or costs that you incur before

your request for indemnification and defense.

10.2 Limited Remedies. If any Device and/or the Tracking Plan Check-In service

becomes, or in Omnilink's opinion are likely to become, the subject of an infringement

claim or action, Omnilink may, at its option and in its sole discretion: (i) procure, at no

cost to you, the right for you to continue using the Device and/or the Tracking Plan

Check-In service; (ii) replace or modify the Device and/or the Tracking Plan Check-In

service to render them non-infringing, provided there is no material loss of functionality;

or, (iii) if, in Omnilink's reasonable opinion, neither (i) nor (ii) above is commercially

feasible, terminate the Agreement. The foregoing provisions of this Section 10.2 state

Omnilink's sole obligation and your exclusive remedy in the event any claim or action for

infringement is commenced or is likely to be commenced.

10.3 Exclusions; Customer Indemnification. Omnilink will have no obligation or liability

under this Section 10 for any claim or action: (i) relating to modifications to the Device

and/or the Tracking Plan Check-In service by a person or entity other than Omnilink or

its third-party licensors; (ii) relating to the combination or use of the Device and/or the

Tracking Plan Check-In service with other products, processes, or materials not supplied

by Omnilink hereunder; (iii) where you, Sub-Account holders or Monitored Users continue

allegedly infringing activities after being notified thereof or after being provided with

modifications that would have avoided the alleged infringement; or, (iv) where use of the

Device and/or the Tracking Plan Check-In service is not in accordance with the terms of

this Agreement. You agree to indemnify and hold Omnilink harmless from and against

all losses, damages and expenses, including reasonable attorneys' fees, in connection

with any claims brought against Omnilink arising out of any of the conditions described in

clauses (i) through (iv) above.

10.4 Customer Indemnification. Except for claims covered by Omnilink's indemnification

obligation in Section 10.3, You agree to defend, indemnify and hold Omnilink and its

officers, directors, shareholders, employees, suppliers and re-sellers, including but not

limited to GTx Corp, and Aetrex Worldwide, Inc. (collectively, the "Indemnified Parties")

harmless from and against all losses, damages and expenses, including reasonable

attorneys' fees, in connection with any claims against the Indemnified Parties in any way

arising out of or related to: (i) Your, a Sub-Account holder or a Monitored User's use of

a Device or the Tracking Plan Check-In service, including claims based on Your acts or

omissions or acts or omissions of Sub-Account holders or Monitored Users; (ii) any acts

of any Monitored Users wearing a Device, including claims for personal, injury property

damage or death; or (iii) Your, a Sub-Account holder's or a Monitored User's negligence

or willful misconduct. In addition, You agree to indemnify and hold the Indemnified Parties

harmless from and against all losses, damages and expenses, including reasonable

attorneys' fees, in connection with any claims brought by Monitored Users against the

Indemnified Parties, individually or together. You shall have the foregoing obligation only

if one of all of the Indemnified Parties provides You with: (i) a prompt written request for

indemnification and defense in such claim or action; (ii) sole control of the defense and

settlement thereof; and, (iii) all available information, assistance and authority reasonably

necessary to settle and defend any such claim or action.

11. LIMITATION OF LIABILITY

IN NO EvENT WILL OMNILINk OR ITS SUPPLIERS OR LICENSORS OR RE-SELLERS,

INCLUDING BUT NOT LIMITED TO GTx CORP, AND AETREx WORLDWIDE, INC.

TOTAL, AGGREGATE LIABILITY ARISING FROM OR RELATED TO ThIS AGREEMENT

(INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACh OF CONTRACT,

MISREPRESENTATION, AND OThER CONTRACT OR TORT CLAIMS), ExCEED ThE

AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER, UP TO ThE

AMOUNT OF FEES PAID TO OMNILINk DURING ThE SIx (6) MONThS IMMEDIATELY

PRECEDING ThE EARLIEST EvENT GIvING RISE TO ThE DAMAGES.

UNDER NO CIRCUMSTANCES ShALL OMNILINk OR ITS SUPPLIERS OR LICENSORS

OR RE-SELLERS, INCLUDING BUT NOT LIMITED TO GTx CORP, AND AETREx

WORLDWIDE, INC. BE LIABLE FOR ANY OF ThE FOLLOWING: (I) ThIRD PARTY

CLAIMS OThER ThAN ThOSE IDENTIFIED IN SECTION 10.1; (II) LOSS OR DAMAGE

TO ANY RECORDS OR DATA; (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,

PUNITIvE, RELIANCE OR COvER DAMAGES (INCLUDING LOST PROFITS AND LOST

SAvINGS), EvEN IF ADvISED OF ThE POSSIBILITY OF SUCh DAMAGES; (Iv) ACTIONS

OR CONDUCT OF ANY MONITORED USERS OR SUB-ACCOUNT hOLDERS; (v) ThE

LOSS OF SIGNALS FROM ANY GPS SATELLITE, ThE LOSS OF SIGNALS FROM

ANY MOBILE NETWORk CELL OR PROvIDER, ThE LOSS OF TELEPhONE SYSTEM

SIGNALS, ThE LOSS OF INTERNET CONNECTIvITY OR (vI) ANY OThER FACTORS

OUTSIDE ThE CONTROL OF OMNILINk.

12. CONFIDENTIALITY

Each Party will use commercially reasonable efforts to maintain the other Party's

Confidential Information in confidence and to not use or disclose any portion of the

other Party's Confidential Information to third parties, except as reasonably necessary to

perform this Agreement and as expressly authorized in this Agreement.

13. TERM AND TERMINATION

13.1 Term and Cancellation. The term of this Agreement shall commence on the Effective

Date and shall continue on a month to month basis.

13.2 Cancellation Request. You can terminate this Agreement at any time, and stop