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ARTICLE 7—LIMITATION OF LIABILITY
<br />7.1 Disclaimer of Certain Types of Liability. ESRI, ITS AUTHORIZED DISTRIBUTOR, AND ITS LICENSORS
<br />SHALL NOT BE LIABLE TO CUSTOMER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
<br />SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS
<br />COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
<br />CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF
<br />PRODUCTS, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI, ITS
<br />AUTHORIZED DISTRIBUTOR, OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
<br />PURPOSE OF ANY LIMITED REMEDY.
<br />7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN ARTICLE B --INFRINGEMENT INDEMNITY,
<br />THE TOTAL CUMULATIVE LIABILITY OF ESRI AND ITS AUTHORIZED DISTRIBUTOR HEREUNDER, FROM
<br />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, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS OR
<br />MAINTENANCE THAT GIVE RISE TO THE CAUSE OF ACTION.
<br />7.3 Applicability of Disclaimers and Limitations. The limitations of liability and disclaimers set forth in this
<br />License Agreement will apply regardless of whether Customer has accepted Products or any other product or
<br />service delivered by Esri or its authorized distributor. The parties agree that Esri or its authorized distributor has
<br />set its fees and entered into this License Agreement in reliance on the disclaimers and limitations set forth herein,
<br />that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the
<br />bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
<br />ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
<br />THE FOREGOING WARRANTIES, LIMITATIONS, AND EXCLUSIONS MAY NOT BE VALID IN SOME
<br />JURISDICTIONS AND APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER'S
<br />JURISDICTION. CUSTOMER MAY HAVE ADDITIONAL RIGHTS UNDER LAW THAT MAY NOT BE WAIVED
<br />OR DISCLAIMED. ESRI DOES NOT SEEK TO LIMIT CUSTOMER'S WARRANTY OR REMEDIES TO ANY
<br />EXTENT NOT PERMITTED BY LAW.
<br />ARTICLE 8—INFRINGEMENT INDEMNITY
<br />8.1 Esri shall defend, indemnify as described below, and hold Customer harmless from and against any loss,
<br />liability, cost, or expense, including reasonable attorneys' fees, arising out of any claims, actions, or demands by a
<br />third party alleging that Customer's licensed use of Software, Self -Paced E-Leaming, or Online Services infringe a
<br />US patent, copyright, or trademark, provided
<br />a. Customer promptly notes Esri in writing of the claim;
<br />b. Customer provides documents describing the allegations of infringement;
<br />c. Esri has sole control of the defense of any action and negotiation related to the defense or settlement of
<br />any claim, provided, however, that'd Customer determines in good faith that Esri has a conflict of interest
<br />in controlling such defense, Customer may retain control of the defense and may settle any claim, which
<br />settlement will be subject to Esri's approval, which approval shall not be unreasonably withheld; and
<br />d. Customer reasonably cooperates in the defense of the claim at Esri's request and expense.
<br />8.2 If Software, Self -Paced E -Learning, or Online Services are found to infringe a US patent, copyright, or
<br />trademark, Esri, at its own expense, may either (i) obtain rights for Customer to continue using the Software, Self -
<br />Paced E-Leaming, or Online Services or (ii) modify the allegedly infringing elements of Software, Self -Paced E-
<br />Leaming, or Online Services while maintaining substantially similar functionality. If neither alternative is
<br />commercially reasonable, the license shall terminate, and Customer shall cease accessing infringing Online
<br />Services and shall uninstall and return to Esri or its authorized distributor any infringing item(s). Esri's entire
<br />liability shall then be to indemnify Customer pursuant to Section 8.1 and (i) refund the Perpetual License fees paid
<br />by Customer to Esri or its authorized distributor for the infringing items, prorated on a five (5) -year, straight-line
<br />REV: 07-08-19 DZ
<br />ATTY/AGR.Amend No. 1/ESRI Page 13 of 21
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