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<br />Client: Housing Authority of the City of Santa Ana MRI Confidential Page 4 of 10
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<br />7. INDEMNIFICATION
<br />7.1 Intellectual Property Infringement. MRI will defend or settle, at
<br />its option and expense, any action, suit or proceeding brought against
<br />Client by a third party that the MRI Software or SaaS Services infringe a
<br />third party’s USA patent, registered copyright, or registered trademark
<br />(“IP Claim”). MRI will indemnify Client against all damages and costs
<br />finally awarded or those costs and damages agreed to in a monetary
<br />settlement of such action, which are attributable exclusively to such IP
<br />Claim, provided that Client: (i) promptly gives written notice of the IP
<br />Claim to MRI; (ii) gives MRI sole control of the defense and settlement of
<br />the IP Claim; (iii) provides MRI, at MRI’s expense, with all available
<br />information and assistance relating to the IP Claim and cooperates with
<br />MRI and its counsel; (iv) does not compromise or settle such IP Claim; and
<br />(v) is not in material breach of any agreement with MRI.
<br />7.2 Indemnification Exceptions. MRI has no obligation to the extent
<br />any IP Claim results from: (i) Client having modified the MRI Software or
<br />SaaS Services or used a release other than a current unaltered release of
<br />the MRI Software, if such an infringement would have been avoided by
<br />the use of a current unaltered release of the MRI Software, (ii) Content
<br />and/or any Third Party Software, (iii) Configurations or (iv) the
<br />combination, operation or use of the MRI Software or SaaS Services with
<br />software or data not provided by MRI.
<br />7.3 Infringement Remedies. If it is adjudicated that an infringement
<br />of the MRI Software or SaaS Service by itself and used in accordance with
<br />the Agreement infringes any USA patent, registered copyright, or
<br />registered trademark, MRI shall, at its option: (i) procure for Client the
<br />right to continue using the MRI Software or SaaS Service; (ii) replace or
<br />modify the same so it becomes non-infringing; or (iii) MRI shall terminate
<br />the applicable license or Service and shall refund to Client (a) with
<br />respect to a perpetual license to the MRI Software, the license fees for
<br />the affected Software, less 1/12 thereof for each month or portion
<br />thereof since the original Commencement Date, or (b) with respect to
<br />SaaS Services and/or limited term Software licenses, the pre-paid portion
<br />of the SaaS Services or term license fees paid to MRI for the affected MRI
<br />Software or Service. SECTIONS 7.1, 7.2 AND 7.3 STATE MRI’S ENTIRE
<br />OBLIGATION TO CLIENT AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR
<br />ANY CLAIM OF INFRINGEMENT.
<br />7.4 Client Indemnification. Client shall defend MRI against any
<br />claim, demand, suit, or proceeding made or brought against MRI by a
<br />third party arising out of or related to (i) the Client Data; (ii) Client’s or
<br />its Client Users’ use of the Software or the SaaS Services in violation of
<br />the Agreement; (iii) Client or any Client User infringing or
<br />misappropriating the Intellectual Property rights of a third party or
<br />violating applicable law; or (iv) Client’s or its Client Users’ use or misuse
<br />of the Software or SaaS Service or Client’s or its Client Users’ use or
<br />misuse of the Client Data (including, without limitation, accessing,
<br />providing access, using or distributing the Client Data) (each of the above
<br />a “Client Claim”). Client shall indemnify MRI for all damages and costs
<br />finally awarded against, and for reasonable attorneys’ fees incurred by,
<br />MRI in connection with any Client Claim, or those costs and damages
<br />agreed to in a monetary settlement of such Client Claim; provided that
<br />MRI (a) promptly gives Client written notice of the Client Claim, (b) gives
<br />Client sole control of the defense and settlement of the Client Claim
<br />(provided that Client may not settle or defend any Client Claim unless it
<br />unconditionally releases MRI of all liability), and (c) provides Client all
<br />reasonable assistance, at Client’s cost. For purposes of this Section 7.4
<br />only, “MRI” shall include MRI and its Affiliates, and each of their
<br />members, owners, officers, directors, employees, agents, successors and
<br />assigns.
<br />8 DISCLAIMERS AND LIMITATION OF LIABILITY.
<br />8.1 Disclaimer of Warranties. THE WARRANTIES, IF ANY, SET FORTH
<br />IN THE SCHEDULES ARE IN LIEU OF, AND MRI, ITS LICENSORS AND
<br />SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY
<br />LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
<br />INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY
<br />SOFTWARE, SAAS SERVICE, CONTENT, DELIVERABLES OR OTHER SERVICES
<br />ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT
<br />ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES
<br />OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
<br />INFRINGEMENT, (iii) ANY WARRANTY THAT CONTENT AND/OR THIRD
<br />PARTY SOFTWARE WILL BE ACCURATE, RELIABLE AND ERROR-FREE AND
<br />(iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE
<br />OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE,
<br />STATEMENT OR INFORMATION GIVEN BY MRI, ITS AFFILIATES,
<br />CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY
<br />WARRANTY PROVIDED HEREIN. ALTHOUGH CERTAIN OF THE SOFTWARE
<br />AND CONTENT MAY BE DESIGNED TO HELP CLIENTS COMPLY WITH
<br />APPLICABLE LAWS AND REGULATIONS, MRI HEREBY DISCLAIMS ALL
<br />WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE
<br />SOFTWARE AND CONTENT IN THIS REGARD; MOREOVER, VARIOUS STATE
<br />LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE STATE
<br />LAW REQUIREMENTS. ALL SUCH LAWS AND REGULATIONS MAY CHANGE
<br />FROM TIME TO TIME, AND THE SOFTWARE AND CONTENT MAY NOT BE
<br />UPDATED TO REFLECT SUCH CHANGES. CLIENT SHOULD CONSULT AN
<br />ATTORNEY WITH RESPECT TO COMPLIANCE WITH ALL APPLICABLE LAWS
<br />AND REGULATIONS.
<br />8.2 Connection Over Internet. CLIENT ACKNOWLEDGES THAT USE
<br />OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR
<br />UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS
<br />AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CLIENT DATA.
<br />ACCORDINGLY, MRI CANNOT AND DOES NOT GUARANTY THE PRIVACY,
<br />SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED
<br />OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
<br />8.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY
<br />LAW, MRI’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED
<br />UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY
<br />THIRD PARTIES UNDER THE AGREEMENT, EXCLUDING LIABILITY PURSUANT
<br />TO SECTION 7 (Indemnification), WILL BE LIMITED TO (i) WITH RESPECT
<br />TO PERPETUAL SOFTWARE LICENSES OR PROFESSIONAL SERVICES, THE
<br />FEES PAID BY CLIENT FOR THE SOFTWARE OR SERVICE WHICH IS THE
<br />SUBJECT MATTER OF THE CLAIM LESS 1/36 THEREOF FOR EACH MONTH
<br />OR PORTION THEREOF SINCE THE COMMENCEMENT DATE AND (II) WITH
<br />RESPECT TO SAAS SERVICES, TERM LICENSES AND MAINTENANCE AND
<br />SUPPORT,THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR THE
<br />SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.
<br />8.4 Third Party Software and Content. WITH RESPECT TO ANY THIRD
<br />PARTY SOFTWARE OR CONTENT PROVIDED TO CLIENT UNDER THE
<br />AGREEMENT, INCLUDING ANY MODULES OF THE SAAS SERVICES THAT MAY
<br />CONTAIN THIRD PARTY SOFTWARE OR CONTENT, CLIENT AGREES THAT (I)
<br />MRI MAY ADD AND/OR SUBSTITUTE FUNCTIONALLY EQUIVALENT
<br />PRODUCTS FOR ANY THIRD PARTY SOFTWARE IN THE EVENT OF PRODUCT
<br />UNAVAILABILITY, END-OF-LIFE, OR CHANGES TO SOFTWARE
<br />REQUIREMENTS; (II) THE PROVISION OF CONTENT IS SUBJECT TO
<br />AVAILABILITY FROM THIRD PARTY CONTENT PROVIDERS AND MRI SHALL
<br />HAVE NO LIABILITY SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR
<br />ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE
<br />COMMERCIAL TERMS; (III) CLIENT’S USE OF ANY THIRD PARTY SOFTWARE
<br />SHALL BE SUBJECT TO, AND CLIENT AND USERS SHALL COMPLY WITH, THE
<br />AGREEMENT AND ANY APPLICABLE THIRD PARTY EULAS; (IV) MRI MAKES
<br />NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY
<br />CONTENT; AND (V) CLIENT’S SOLE REMEDY WITH RESPECT TO SUCH THIRD
<br />PARTY SOFTWARE SHALL BE PURSUANT TO THE ORIGINAL LICENSOR’S
<br />WARRANTY, IF ANY, TO MRI, TO THE EXTENT PERMITTED BY THE ORIGINAL
<br />LICENSOR. CONTENT AND THIRD PARTY SOFTWARE ARE MADE AVAILABLE
<br />ON AN “AS IS, AS AVAILABLE” BASIS.
<br />8.5 No Special Damages. IN NO EVENT WILL MRI OR CLIENT BE LIABLE
<br />TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
<br />EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES
<br />(INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE,
<br />PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC
<br />ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF
<br />WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
<br />OTHERWISE, WHETHER OR NOT THE PARTY HAS PREVIOUSLY BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />8.6 Time to Bring Claim. NO CLAIM ARISING OUT OF THE
<br />AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST THE
<br />OTHER PARTY MORE THAN THE SHORTER OF ONE YEAR OR THE MINIMUM
<br />PERIOD ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.
<br />EXHIBIT 2
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