|
<br />THOIVISON
<br />.
<br />ELITE
<br />
<br />notice. Upon such termination, Thomson Elite shall provide a refund
<br />as provided in Section 6.3.2.
<br />
<br />6.3.2 Refund Upon Termination. Upon termination by
<br />Customer pursuant to this Section 6.3, Thomson Elite will refund to
<br />Customer all License Fees, the Annual Subscription Fee, if any, and
<br />the pro rata portion of any prepaid Annual Maintenance Charges
<br />received by Thomson Elite as of the date of termination upon return
<br />of the Software. IN NO EVENT SHALL CUSTOMER BE ENTITLED
<br />TO A REFUND OF ANY SERVICES FEES OR EXPENSES
<br />
<br />6.4 Exclusive Remedies. The remedies in Sections 6.3 and
<br />71 (and if attached hereto, in the Services Addendum and/or the
<br />Maintenance Addendum) are Customer's exclusive remedies and are
<br />in lieu of all other legal or equitable remedies and all liabilities or
<br />obligations on the part of Thomson Elite for damages (except for
<br />bodily injury) arising out of, relating to, or in connection with this
<br />Agreement, including, but not limited to, the licensing, delivery,
<br />Installation, use or performance of the Software or the integration of
<br />the Software with other software or hardware.
<br />
<br />6.5 Limitation of Liability. In no event shall Thomson Elite's,
<br />or its officers', employees', suppliers', directors', parent's, affiliates' or
<br />subsidiaries,' liability to Customer arising out of or related to this
<br />Agreement, or the licensing, delivery, use or performance of the
<br />Software or services provided under this Agreement or any breach of
<br />this Agreement, whether based on an action or claim in contract or
<br />tort, including negligence, strict liability or warranty, except liability for
<br />bodily injury: (i) from the Effective Date through the end of the
<br />Warranty Period, exceed the License Fees, Annual Subscription Fee,
<br />if any, and the pro rata portion of any prepaid Annual Maintenance
<br />Charges received by Thomson Elite hereunder; (ii) after the Warranty
<br />Period, exceed the sum of the Annual Subscription Fee, if any, and
<br />the Annual Maintenance Charge for the year in which the claim
<br />arises; and (iii) under any amendment to this Agreement, exceed the
<br />amount payable by Customer pursuant to such amendment. In no
<br />event will Thomson Elite be liable for any lost profits or other
<br />damages, including indirect, incidental, exemplary, special or
<br />consequential damages arising out of this Agreement or the use of
<br />the Software licensed hereunder, even if Thomson Elite has been
<br />advised of the possibility of such damages.
<br />
<br />7. Indemnification.
<br />
<br />7.1 Infringement Claims. Thomson Elite represents and
<br />warrants that it has sufficient right and interest to grant the rights
<br />herein. At its sole expense, Thomson Elite shall defend, indemnify
<br />and hold Customer harmless from copyright, trade secret and U.S.
<br />patent infringement claims based upon the Licensed Software in the
<br />form delivered by Thomson Elite, including paying any judgment,
<br />attorney fees, costs and expenses associated with such claim.
<br />
<br />7.2 Without limiting its obligations under Section 7.1, in the
<br />event a claim of infringement or misappropriation is made against
<br />Thomson Elite or Customer with respect to the Licensed Software,
<br />Thomson Elite, for the purpose of settling such claim, may, at its
<br />option, in respect of such allegedly infringing Licensed Software:
<br />
<br />(i) substitute fully equivalent non-infringing software; or
<br />(ii) modify the Licensed Software so that it no longer infringes
<br />but remains functionally equivalent.
<br />
<br />VeL 7 Feb 2008
<br />
<br />If, as a result of such claim, Customer or Thomson Elite is
<br />permanently enjoined from using the Licensed Software by a final,
<br />non-appealable decree from a court of competent jurisdiction,
<br />Thomson Elite will take one or both of the actions set forth in (i) and
<br />(ii) above or will obtain for Customer at Thomson Elite's expense the
<br />right to continue to use the Licensed Software. If none of these
<br />options can be accomplished in a reasonable time or are not
<br />commercially reasonable, Thomson Elite will refund to Customer the
<br />License Fee paid as amortized over a 60 month period from the
<br />Effective Date upon return of the Licensed Software
<br />
<br />7.3 Thomson Elite's obligation to indemnify Customer pursuant
<br />to this Section 7 is contingent upon Thomson Elite being given
<br />prompt notice and control of, and detailed information with regard to,
<br />any such claim, suit or proceeding. Customer shall have the right to
<br />participate at its own cost in the defense of any such claim or action
<br />through legal counsel of its choosing. Customer shall not settle any
<br />such claim or action without Thomson Elite's prior written consent.
<br />
<br />7.4 This Section 7 contains the entire warranty by Thomson
<br />Elite and the exclusive remedies of Customer with regard to any
<br />claimed infringement arising out of or based upon the Licensed
<br />Software used by Customer.
<br />
<br />8. Term and Termination. This Agreement will continue in effect
<br />until terminated as provided herein. Termination of Maintenance
<br />Services shall not automatically terminate this Agreement. Thomson
<br />Elite may terminate this Agreement upon giving thirty (30) days
<br />written notice of termination to Customer if Customer commits a
<br />material breach of this Agreement and fails to cure such breach
<br />during the notice period. Customer may terminate this Agreement for
<br />cause only as provided in Section 6 above. Upon termination of this
<br />Agreement for any reason, the license granted to Customer and all
<br />other rights granted to Customer under this Agreement shall
<br />immediately cease and Customer shall immediately return to
<br />Thomson Elite, or certify the destruction of, all copies of the Software
<br />and related Software User Manuals in Customer's possession.
<br />Customer may terminate the license to the Westlaw Legal
<br />Calendaring Rules, if any, by giving written notice prior to the end of
<br />the then current Annual Subscription term, and upon such
<br />termination, Customer shall immediately return to Thomson Elite, or
<br />certify the destruction of, all copies of the Westlaw Legal Calendaring
<br />Rules and related manuals and documentation in Customer's
<br />possession.
<br />
<br />9. Limitation of Claims. Except for claims relating to the
<br />Software Fees or improper use of the Software, no claim, regardless
<br />of form, which in any way arises out of this Agreement, may be
<br />brought more than one year after the basis for the claim becomes
<br />known to the party desiring to assert it.
<br />
<br />10. General Provisions.
<br />
<br />10.1 Effect of Agreement. This Agreement (including the
<br />exhibits hereto) embodies the entire understanding between the
<br />parties with respect to the subject matter of this Agreement and
<br />supersedes any and all prior understandings and agreements, oral or
<br />written, relating to the subject matter. Any amendment must be in
<br />writing and signed by both parties.
<br />
<br />Page 3 of 17
<br />
<br />..
<br />
|