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Capstone Turbine Corporation 21211 Nordhoff Street Chatsworth CA 91311 USA CRMS (User Edition – Chapter 21: CRMS Software License Agreement) including copies of any manuals or other documentation. 5. Government Licensee: The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable. The manufacturer is Capstone Turbine Corporation, 21211 Nordhoff Street, Chatsworth, CA 91311. 6. Representations and Warranties: Capstone warrants the diskette(s), CD(s), or other tangible media on which the program is furnished to be free from defects in material and workmanship under normal use for a period of ninety (90) days from the date of delivery to Licensee. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. CAPSTONE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; AND ANY WARRANTIES OF NON- INFRINGEMENT. CAPSTONE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT DEFECTS IN THE SOFTWARE WILL OR CAN BE CORRECTED. 7. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL CAPSTONE BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES - INCLUDING LOST GOODWILL, LOST PROFITS, LOST BUSINESS, OR OTHER INDIRECT ECONOMIC DAMAGES, AND FURTHER INCLUDING ANY INJURY TO PERSON AND/OR PROPERTY – THAT RESULT DIRECTLY OR INDIRECTLY FROM THE USE OR INABILITY TO USE THE SOFTWARE, ANY ERROR OR MALFUNCTION OF THE SOFTWARE, OR THAT RESULT FROM THE USE OR INABILITY TO USE A CAPSTONE MICROTURBINE, WHETHER CAUSED BY THE SOFTWARE OR NOT, EVEN IF CAPSTONE OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR SUCH DAMAGES WERE CAUSED BY CAPSTONE’S NEGLIGENCE. IN NO EVENT SHALL CAPSTONE'S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE. 410013 Rev H (December 2008) 8. Indemnification: Licensee agrees to defend, indemnify and hold Capstone harmless from and against all claims, costs, actions, and other liabilities and expenses of any sort, including attorneys’ and expert witness’ fees, arising from Licensee’s use of the Software, including any and all damage to persons or property caused by Capstone MicroTurbines or other Capstone equipment due directly or indirectly to any error, inoperability, or malfunction of the Software.] 9. Governing Law; Attorney’s Fees: This Agreement shall be governed by the laws of the State of California without regard to California’s rules relating to conflict of laws. Any dispute, controversy, or other proceeding arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the City of Los Angeles, California and the parties hereby submit to the personal jurisdiction and venue of such courts. If either Capstone or Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees. 10. EntireAgreement;Severability:This Agreement constitutes the entire understanding of the parties with respect to the Software and its use and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, promises and other communications of any kind, whether written or oral, between the parties with respect to the Software and its use. No alteration, modification, variation or waiver of this Agreement or any of the provisions hereof, shall be effective unless executed by both parties in writing. If any term or provision of this Agreement (other than a provision going to the essence of this Agreement) is found to be unlawful, void, or unenforceable for any reason then that provision shall be deemed severable from the Agreement and shall not affect the validity or enforceability of the remaining portions of the Agreement. Capstone Turbine Corporation 21211 Nordhoff Street Chatsworth, California 91311 Phone (818)734-5300 Facsimile (818)734-5320 Web Site www.microturbine.com Capstone reserves the right to change or modify, without notice, the design, specifications, and/or contents of this document without incurring any obligation either with respect to equipment previously sold or in the process of construction. Page 21-2PDF Image | Technical Reference Capstone Remote Monitoring System (User Edition)
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