|
<br />8.2 General Limitation of Liability-IN NO EVENT WILL ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER,
<br />FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT
<br />(INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR
<br />OTHERWISE, EXCEED THE AMOUNTS PAID TO ESRI BY LICENSEE FOR SOFTWARE, DATA, OR
<br />DOCUMENTATION PURSUANT TO THIS AGREEMENT.
<br />
<br />8.3 Applicability of Disclaimers and Limitations-Licensee agrees that the limitations ofliability and disclaimers set forth
<br />in this Agreement will apply regardless of whether Licensee has accepted the Software, Data, or Documentation or any other
<br />product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this Agreement in
<br />reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties
<br />(including the risk that a contract remedy may fail of its essential purpose and cause consequential loss ), and that the same
<br />form an essential basis of the bargain between the parties.
<br />
<br />ARTICLE 9-INFRINGEMENT INDEMNITY
<br />
<br />9.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense,
<br />including reasonable attorneys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third
<br />party alleging that the Software, Data, or Documentation infringes a U.S. patent, copyright, or trademark provided
<br />
<br />(a) Licensee promptly notifies ESRI in writing of the claim thereof;
<br />(b) ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any
<br />claim; and
<br />(c) Licensee cooperates fully in the defense of the claim.
<br />
<br />9.2 IfESRI believes that the Software, Data, or Documentation is or will become the subject of an infringement claim, or in
<br />the event that use ofthe Software, Data, or Documentation is enjoined, ESRI, at its own expense, may either (i) obtain the
<br />right for Licensee to continue using the Software, Data, or Documentation or (ii) modify the Software, Data, or
<br />Documentation to make it noninfringing while maintaining substantially similar software functionality or data/informational
<br />content. If neither of such alternatives is commercially practical, the infringing items shall be returned to ESRI and ESRI's
<br />sole liability shall be to refund license fees paid by Licensee prorated on a twenty percent (20%) per year straight line
<br />depreciation basis over a five (5) year period from the initial date of delivery.
<br />
<br />9.3 ESRI shall have no obligation hereunder to defend Licensee or to pay any resulting costs, damages, or reasonable
<br />attorneys' fees for or with respect to any claims, actions, or demands alleging (i) infringement that arises by reason of
<br />combination ofnoninfringing items, however acquired, with any items not supplied by ESRI; (ii) infringement to the extent
<br />arising from material alteration of the Software, Data, or Documentation by anyone other than ESRI, its agents, or its
<br />contractors; (iii) the direct or contributory infringement of any process patent by Licensee through the use of the Software,
<br />Data, or Documentation other than a process patent that is necessarily infringed by the internal processes executed within the
<br />Software or Data itself when the Software or Data is executed for its intended purpose; (iv) continued allegedly infringing
<br />activity by Licensee after it has been notified of the possible infringement; or (v) continued allegedly infringing activity by
<br />Licensee to the extent it arises from failure of Licensee to use the updated or modified Software, Data, or Documentation
<br />provided by ESRI for avoiding infringement.
<br />
<br />THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI WITH RESPECT TO INFRINGEMENT OR
<br />ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
<br />
<br />ARTICLE 10-GENERAL PROVISIONS
<br />
<br />10.1 Future Orders-All Software, Data, Documentation, or maintenance orders placed within one (1) year of this
<br />Agreement's execution date shall be licensed under the terms of this Agreement, except that new Software, Data, and
<br />Documentation commercially released during that year may require additional terms. Orders placed and Software, Data, and
<br />Documentation updates or upgrades provided after that time shall be governed by the then-current General License Terms
<br />and Conditions and Exhibit 1, the terms of which will be indicated on ESRI's Web site or enclosed in the deliverable's
<br />packaging, depending on the method of delivery.
<br />
<br />10.2 Export Control Regulations-Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, or
<br />provide the Software, Data, or Documentation, in whole or in part, to (i) any country to which the United States has
<br />embargoed goods; (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person
<br />
<br />Page 4 of5
<br />
<br />E200 5/04
<br />
|