The Reseller shall indemnify and hold harmless KMSI and all members of KMSI and their respective officers, directors and employees from and against any claims, suits, liabilities, losses, fines, penalties, damages and expenses (including reasonable attorneys’ and experts’ fees and costs) arising from or incident to the Reseller’s software and/or the Reseller’s breach of its obligations or responsibilities under this Agreement.
LIMITATION ON LIABILITY
KMSI’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNTS PAID BY RESELLER TO KMSI UNDER THIS AGREEMENT. NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM. This Agreement will commence in force on the Effective Date and will, unless sooner terminated under this Section 10, continue for a term of one (1) year, at which time this Agreement shall automatically terminate.
TERMINATION FOR CAUSE: Either party may immediately terminate this Agreement by giving the other notice if such other party:
defaults in the payment of any monies it owes to the other when due and such default continues for a period of ten (10) days after notice thereof; or
defaults in the performance of any of its obligations under any of the terms or conditions of this Agreement other than as provided in subsection (a) above, which default is not remedied within thirty (30) days after notice thereof; or,
defaults in the performance of any of its obligations under the terms and conditions of this Agreement which default, by its nature, cannot be remedied; or,
is unable to pay any and/or all of its debts as they become due or becomes insolvent or ceases to pay any and/or all of its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of its creditors; or,
is liquidated or dissolved or if any proceedings are commenced by, for or against it under any bankruptcy, insolvency, reorganization of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy.
TERMINATION FOR CONVENIENCE: Either party may terminate this Agreement for any reason or for no reason by giving the other party thirty (30) days prior written notice.
REMEDIES FOR BREACH: If the Reseller defaults in its obligations under the terms and conditions of this Agreement, KMSI may, in addition to any other remedy available to it hereunder or at law therefore, suspend or cease further provisions of the Products to the Reseller for a period of time specified in a notice to the Reseller.
SURVIVING OBLIGATIONS AND LIMITATIONS: Neither the termination nor expiration of this Agreement shall release either party from the obligation to pay any monies that may be owing to the other party or operate to discharge any liability that had been incurred by either party prior to any such termination or expiration. The Reseller shall return all Products and materials to KMSI promptly upon termination of this Agreement. Upon termination or expiration of this Agreement, the following Sections shall survive: 1, 2.4, 2.5, 3.6, 6, 7.1, 7.2, 7.3, 8, 9, 10.5, 11, 12, 13 and Article III. Except as set forth in this Section 10.5, all other provisions shall terminate upon termination or expiration of this Agreement.
CHANGE IN STATUS: The Reseller shall give KMSI immediate notice in writing of: (a) any transaction effecting a change in control of the Reseller or a transfer of fifty (50) percent or more of the Reseller’s assets if the Reseller is a corporation; or, (b) any change in the respective interests of the partners, if the Reseller is a partnership; or, (c) any transaction affecting the ownership of any part of the business, if the Reseller is an individual proprietorship.