Fluke Recording Equipment Limitation of Liability and indemnity, Intellectual Property Rights

User’s Guide – version 3.1.3 NetFlow Tracker

5.4Without prejudice to the generality of clause 5.3 and for the avoidance of doubt, to the fullest extent permitted by law all terms implied by Sections 13, 14 and 15 of the Sale of Goods Act, 1893 are hereby excluded and all terms implied by the Sale of Goods and Supply of Service Act, 1980 including, without prejudice to the generality of the foregoing, Section 39, are hereby excluded and the parties agree that this is fair and reasonable.

6.Limitation of Liability and indemnity

6.1You shall indemnify Fluke in full and hold Fluke harmless in respect of any loss, damages, proceedings, suits, third party claims, judgements, awards, expenses and costs (including legal costs) incurred by or taken against Fluke as a result of the negligence, fault, error, omission, act or breach of You or of your employees, staff, contractors, agents or representatives or for any breach of this Agreement whatsoever by You.

6.2In no event will Fluke be liable to You for any special, incidental, indirect, punitive or consequential loss or damages, any loss of business, revenue or profits, loss of use, loss of data, loss of savings or anticipated savings, loss of investments, loss of goodwill, capital costs or loss of extra administrative cost, whether occasioned by the negligence, fault, error, omission, act or breach of the Fluke, its employees, contractors or sub-contractors whether or not foreseeable, arising out of or in connection with this Agreement, whether in an action based on contract, equity or tort including negligence or other legal theory.

6.3Notwithstanding any other provision of this Agreement, the aggregate liability of Fluke for or in respect of all breaches of its contractual obligations under this Agreement and for all representations, statements and tortious acts or omissions (including negligence but excluding negligence causing loss of life or personal injury) arising under or in connection with this Agreement shall in no event exceed the Support Charges paid by You pursuant to this Agreement prior to the date of the breach.

7.Intellectual Property Rights

7.1Ownership of all Intellectual Property Rights in the Product and any accompanying documentation is governed by the provisions of the Licence Agreement.

8.Termination

8.1You can terminate this Agreement at any time after the first anniversary of this Agreement by giving to Fluke not less than 90 days’ written notice.

8.2Either Party may terminate this Agreement by written notice to the other Party where:

8.2.1the other party has committed a material breach of the terms or conditions of this Agreement including the terms, conditions and provisions of the Schedule and where the breaching party has failed to remedy such breach within sixty (60) days after receiving written notice from the non-breaching party requiring it so to do; and

8.2.2the other party makes any arrangement or composition with its creditors or pass a resolution or where a Court shall make an order that the defaulting party shall be wound up (save and excepting only a member's winding up for the purposes of reconstruction or amalgamation to which the other party has been approved in writing prior to such) or where an examiner or a receiver or a liquidator is appointed over the other a Party’s business.

8.3On termination of this Support Agreement all rights and obligations of the parties under this Support Agreement shall automatically terminate except for any rights of action which may have accrued prior to termination and any obligations which expressly or by implication are intended to commence or continue in effect on or after termination.

9