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E204
<br />
<br />April 1, 2022
<br />
<br />REV: 09-20-2022 SK
<br />ARTICLE B.4 LIMITATION OF LIABILITY
<br />B.4.1 Disclaimer of Liability. Neither Customer, Esri, nor any Esri authorized distributor or third party
<br />licensor will be liable for any indirect, special, incidental, or consequential damages; lost profits; lost
<br />sales; loss of goodwill; costs of procurement of substitute goods or services; or damages exceeding the
<br />applicable license fees, or current subscription fees, or Services fees paid or owed to Esri for the Esri
<br />Offerings or Services giving rise to the cause of action.
<br />B.4.2 The limitations and exclusions of liability in the preceding paragraph do not apply to Customer's infringement,
<br />misuse, or misappropriation of Esri's or Esri's licensors' intellectual property rights, either party's indemnification
<br />obligations, gross negligence, willful misconduct, or violations of the Export Compliance clause of this Agreement
<br />or any applicable law or regulation.
<br />B.4.3 Applicability of Disclaimers and Limitations. Esri or its authorized distributor has set its fees and entered
<br />into this Agreement in reliance on the disclaimers and limitations in this Agreement; the fees reflect an allocation of
<br />risk that is an essential basis of the bargain between the parties. These limitations will apply whether or not a
<br />party is aware of the possibility of any damage and notwithstanding any failure of essential purpose of any
<br />exclusive, limited remedy.
<br />B.4.4 The foregoing disclaimers, limitations, and exclusions may be invalid in some jurisdictions and apply only to
<br />the extent permitted by applicable law or regulation in Customer's jurisdiction. Customer may have additional rights
<br />that may not be waived or disclaimed. Esri does not seek to limit Customer's warranty or remedies to any extent
<br />not permitted by law.
<br />ARTICLE B.5 INDEMNIFICATIONS
<br />B.5.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
<br />a."Claim" means any claim, action, or demand by a third party.
<br />b."Indemnitees" means Customer and its directors, officers, and employees.
<br />c."Infringement Claim(s)" means any Claim alleging that Customer's use of or access to any Esri Offering or
<br />Service infringes a patent, copyright, trademark, or trade secret.
<br />d."Loss (es)" means expenditure, damage award, settlement amount, cost, or expense, including
<br />awarded attorneys' fees.
<br />B.5.2 Infringement Indemnity.
<br />a. Esri will defend, hold all Indemnitees harmless from, and indemnify any Loss arising out of an Infringement
<br />Claim.
<br />b. If Esri determines that an Infringement Claim is valid, Esri may, at its expense, either (i) obtain rights for
<br />Customer to continue using the Esri Offerings or Services or (ii) modify the Esri Offerings or Services while
<br />maintaining substantially similar functionality. If neither alternative is commercially reasonable, Esri may
<br />terminate Customer's right to use the Esri Offerings or Services and will refund any (a) license fees that
<br />Customer paid for the infringing Esri Offerings or Services acquired under a Perpetual License, prorated on a
<br />5-year, straight-line depreciation basis beginning from the initial date of delivery or (b) unused portion of fees
<br />paid for Term Licenses, Subscriptions, and Maintenance.
<br />c. Esri has no obligation to defend an Infringement Claim or to indemnify Customer to the extent the
<br />Infringement Claim arises out of (i) the combination or integration of Esri Offerings or Services with a product,
<br />process, system, or element that Esri has not supplied or specified in the Specification; (ii) alteration of Esri
<br />Offerings or Services by anyone other than Esri or its subcontractors; (iii) compliance with Customer's
<br />specifications; or (iv) use of Esri Offerings or Services after Esri either provides a modified version to avoid
<br />infringement or terminates Customer's right to use the Esri Offerings or Services.
<br />B.5.3 General Indemnity. Esri will defend and hold all Indemnitees harmless from, and indemnify any Loss
<br />arising out of, any Claim for bodily injury, death, or tangible or real property damage brought against any of the
<br />Indemnitees to the extent arising from any negligent act or omission or willful misconduct by Esri or its directors,
<br />officers, employees, or agents performing Services while on Customer's site.
<br />ATTY/AGR.2022.349/ESRI (Page 18 of 25)
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