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LIMITED WARRANTY AND DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY

ESP warrants that it has the authority and right to license the SOFTWARE, and that the SOFTWARE will conform to the material printed specifications therefore which are in effect on the date of original delivery of such SOFTWARE. ESP's warranty and obligation shall extend for a period of ninety (90) days after the date of the original delivery of SOFTWARE to LICENSEE by ESP, and is solely for the benefit of LICENSEE, who has no authority to assign or pass through this warranty to any other person or entity.

Except as provided in this Section, the SOFTWARE is provided to LICENSEE on an "AS IS" basis, and ESP makes no other warranty of any kind, express or implied, with regard to the SOFTWARE licensed hereunder. ESP warrants that the SOFTWARE properly processes date and time information between the years 1970 and 2038. ESP does not warrant or represent that the SOFTWARE will operate uninterrupted or error free or that all defects in the SOFTWARE are correctable or will be corrected. This warranty shall not apply if SOFTWARE is used other than in accordance with ESP's written instructions, or if any of LICENSEE's hardware equipment or other software malfunctions. ESP's entire liability and LICENSEE's exclusive remedy for any defects in the SOFTWARE shall be to obtain ESP's SOFTWARE updates via the Internet or pay a media update fee for each copy of the SOFTWARE.

THE FORGOING WARRANTIES ARE IN LIEU OF, AND ESP DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow the exclusion of implied warranties, so the exclusion above may not apply to LICENSEE. This warranty gives LICENSEE specific legal rights, and LICENSEE may have other rights which vary from state to state.

IN NO EVENT SHALL ESP OR ESP'S LICENSORS BE LIABLE TO LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR DATA AND PERSONAL INJURY), WHETHER OR NOT ESP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. In no event will ESP be liable for any claim against LICENSEE by a third party, and LICENSEE hereby agrees to indemnify and hold ESP harmless for any claims for cost, damage, expense or liability arising out of or in connection with the installation, use and performance of the SOFTWARE licensed hereunder, whether alone or in combination with any other product or service. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the limitation above may not apply to LICENSEE.