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<br />AVEVA Clickwrap EULA PO APM MC (Excluding Process Optimization and Unified Supply Chain)-v4.6-14 July 2020 (JS)
<br />such liability in the twelve (12) month period preceding the date of the incident giving rise to the claim. The
<br />provisions of this Section 8 allocate the risks between AVEVA and Customer, and AVEVA’s pricing reflects
<br />this allocation of risk and the limitation of liability specified herein. Notwithstanding the foregoing, the
<br />limitations on amounts of damages set forth in this Section 8.2 shall not apply to AVEVA’s intentional
<br />misconduct, fraud, or fraudulent misrepresentation, or to the extent prohibited by applicable law.
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<br />9. INDEMNIFICATION.
<br />9.1 Indemnification by AVEVA. AVEVA shall defend, indemnify, and hold harmless Customer against claims
<br />brought against Customer by any third party alleging that Customer’s use of the Products in accordance
<br />with the terms and conditions of the Agreement, constitutes an infringement of a patent or copyright, or
<br />misappropriation of a trade secret of a third party AVEVA will pay damages finally awarded to the third party
<br />(or the amount of any settlement AVEVA enters into) with respect to such claims. This obligation of AVEVA
<br />shall not apply if the alleged infringement or misappropriation results from: (a) use of the Products in
<br />conjunction or combination with any other software, services, or any product, data, item, or apparatus that
<br />AVEVA did not provide to Customer (including any third-party services or Third-Party Products); (b) anything
<br />Customer provides or designs including configurations, instructions, or specifications (including any
<br />Products that were provided pursuant to Customer’s designs, drawings, or specifications); (c) a modification
<br />of a Product other than with AVEVA’s prior written consent; (d) Customer’s failure to use the latest release
<br />or version of a Product (including any corrections or enhancements) where such use would have prevented
<br />the infringement or misappropriation claim; or (e) any use, storage, distribution, reproduction, or
<br />maintenance not permitted by the Agreement. If AVEVA believes, in its reasonable opinion, that a claim
<br />under this Section 9.1 could or is likely to be made, AVEVA may cease to offer or deliver such Products
<br />without being in breach of the Agreement.
<br />9.2 Infringement Remedies. In the event a claim under Section 9.1 is made and such Product is held to infringe
<br />a third-party’s patent or copyright, or misappropriate a trade secret, then AVEVA may, at its sole option and
<br />expense: (a) procure for Customer the right to continue using the Product under the terms of the Agreement
<br />or (b) replace or modify the Product to be non-infringing without a material decrease in functionality. If these
<br />options are not reasonably available, AVEVA or Customer may terminate the Agreement upon written notice
<br />to the other and Customer shall immediately cease using or shall return the infringing Product. The
<br />provisions of this Section 9.2 state the sole, exclusive, and entire liability of AVEVA to Customer, and is
<br />Customer’s sole remedy, with respect to third-party claims covered by Section 9.1.
<br />9.3 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless AVEVA and its Affiliates
<br />(and each of their licensors), and each of their respective officers, directors, contractors, agents, and
<br />employees (“AVEVA Indemnitees”) against claims brought against AVEVA Indemnitees by any third party
<br />arising from or related to: (a) any use of the Products or Support Services by Customer in violation of the
<br />Agreement or any applicable law or regulation; (b) any Customer Content; and (c) an allegation that any
<br />material provided by Customer violates, infringes, or misappropriates the Intellectual Property Rights of a
<br />third party. The foregoing shall apply regardless of whether such damage is caused by the conduct of
<br />Customer and/or its named users or by the conduct of a third party using Customer’s access credentials.
<br />9.4 Indemnification Requirements. The indemnification obligations under this Section 9 are conditioned on: (a)
<br />the Party against whom a third-party claim is brought timely notifying the other Party in writing of any such
<br />claim, provided however that a Party’s failure to provide or delay in providing such notice shall not relieve a
<br />Party of its obligations under this Section 9 except to the extent such failure or delay prejudices the defense;
<br />(b) the Party who is obligated to defend a claim having the right to fully control the defense of such claim;
<br />(c) the Party against whom a third-party claim is brought reasonably cooperating in the defense of such
<br />claim; and (d) Customer complying with AVEVA’s direction to cease any use of the Products which in
<br />AVEVA’s reasonable opinion, is likely to constitute an infringement or misappropriation. Any settlement of
<br />any claim shall not include a financial or specific performance obligation on or admission of liability by the
<br />Party against whom the claim is brought, provided however that AVEVA may settle any claim on a basis
<br />requiring AVEVA to substitute for the Products any alternative substantially equivalent non-infringing
<br />products. AVEVA shall not be responsible for any settlement made without its consent. The Party against
<br />whom a third-party claim is brought may appear, at its own expense, through counsel reasonably acceptable
<br />to the Party obligated to defend claims. Neither Party shall undertake any action in response to any
<br />infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other
<br />ATTY/AGR.2021.312/E&M Electric and Machinery, Inc. (AVEVA Wonderware Flex Subscription) (Page 17 of 51)
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