|
E
<br />7. INDEMNIFICATION
<br />7.1 Intellectual Property Infringement. MRI will defend or seine, aL
<br />its option and expense, any action, Suit or proceeding brought agar nst
<br />Client by a third party that the MRI Software or SaaS Services infringe a
<br />Lhird parity's USA pa LCni., rCgiSLered COpyrigh L, or registered Lrademak
<br />L"IP Claim"). MRI will indemnify Client against all damages and costs
<br />finally awardrd or thosr rosts and damagrs agrcrd to in a monrtary
<br />settlement of such action, which are attributable exclusively to such IP
<br />Claim, provided that Client: T) promptly gives written notice of the IP
<br />Claim to MRI; iii) gives MRI sole control of the defense and settlement of
<br />the IP Claim, (iii) provides MRI, at MRI's expense. with all available
<br />information and assistance relating to the IP Claim and cooperates with
<br />MRI mid iLs counsel; (iv) does rIOL colnproinise or SCLLIC SLICII IP Claim; alld
<br />(v) is not in material breach of any agreement with MRI.
<br />7.2 Indemnification Exceptions. MR1 has no obligation to the extent
<br />any IP ([,Arm IPSURS from: (1) Client having modlfled the MRI Software or
<br />SaaS Services or used a release other than a current unaltered release of
<br />the MRI Software, if such an infringement would have been avoided by
<br />the Use of a eunett unaltered release of the MRI Software, (1) Content
<br />and/or arty Third Party Software, (Fir) Configurations or Dv) the
<br />combination, operation or use of the MRI Software or SaaS Services with
<br />software or data not provided by MRI.
<br />7.3 Infringement Remedies. If it is adjudicated that an Infringement
<br />of Lhe MRI Software or SaaS Service by itself and used in accordance with
<br />the Agrecmcnt hlfr qus any USA patent, roglstcrcd copyright, or
<br />registered trademark. MRI shall, at its option: (i) procure for Client the
<br />right to Conlrnue usng life MRI SoRware or SaaS Service; (u replace or
<br />mudlfy the same Su it becortleS oust-infiulgiug; or (Fir) MRI shall terminate
<br />the applicable license or Service and shall refund to Client (a) with
<br />respect to a perpelual License to Lhe MRI SORwaI'e, Lhe license lees for
<br />the affected Software, less 1112 thereof for each month or portioil
<br />thereof since the anginal Commencement Date, or (b) with respect to
<br />Saab SerVlces antl/or lhnited teen Software 0(enses, the pre -paid portion
<br />of the SaaS Services or term license fees paid to MRI for the affected MRI
<br />Software or -Service. SECTIONS 7.1. 7.2 AND 7.3 STATE MRI'S ENTIRE
<br />OBLIGATION TO CUENT AND CUENT'S SOLE AND EXCLUSIVE REMEDY FOR
<br />ANY CLAIM OF INFRINGEMENT.
<br />7.4 Client Indemnification. Client shah defend MRI against ary
<br />claim, demand, suit, or proceeding made or brought against MRI by a
<br />third party arising out of or related to T) the Client Data; (if) Client's or
<br />AS Client Users' use of the Software or the SaaS Services in violation of
<br />the Agrecmcnt; (iii) Client or any Client User infringing or
<br />misapprupnating the Intellectual Property rights of a third party or
<br />violating applicable law; or liv) Client's or its Client Users' use or misuse
<br />of Lhe SufLwalc of SaaS SclviLc of Client's of iLs ClicoL Users' use of
<br />misuse of the Client Data (Including, without limitation, accessing,
<br />providing access, using or dislribuling Lhe CGenL DaLa) (each of lne above
<br />a "CIIcIIt CIaIm" ). Clteiit Shall Iiidemidfy MRI for all ddinagcs dud costs
<br />finally awarded against, and for reasonable attorneys' fees Incurred by,
<br />MRI III (ohmectlorl With any Client Clalin, or those costs and damages
<br />agreed to in a monetary settlement of such Client Claim; provided that
<br />MRI (a) promptly gives Client written notice of the Client Claim, (b) gives
<br />CUrnt solr control of fhr defrnse and setflculcnf of the CUcnt Claret
<br />(provided that Client may not settle or defend any Client Claim unless it
<br />unconditionally releases MRI of all liability), and (c) provides Client all
<br />reasonable assistan(e, if Client's cost. For purposes of This Section 7.4
<br />only, "MRI" shall include MRI and its Affiliates, and each of their
<br />members, owners, officers, directors, employees, agents, successors and
<br />assigns.
<br />DISCLAIMERS AND LIMITATION OF LIABILITY,
<br />8.1 Disclaimer of Warranties. THE WARRANTIES, IF ANY. SET FORTH
<br />IN II IL SCIILOULLS ARL IN LILU 01, AND MRI, I I S LIC,LNSORS AND
<br />SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY
<br />LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN.
<br />INFRINGEMENT, (in) ANY WARRANTY THAT CONTENT AND/OR THIRD
<br />PARTY SOFTWARE WILL BE ACCURATE, RELIABLE AND ERROR -FREE AND
<br />Dv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE
<br />OF DFAI ING, COI IRSF OF PFRFORMANCF OR I ISAGF OF TRAOF. NO ADVICF,
<br />STATEMENT OR INFORMATION GIVEN BY MRI, ITS AFFILIATES,
<br />CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY
<br />WARRANTY PROVIDED HEREIN. ALTHOUGH CERTAIN OF THE SOFTWARE
<br />AND CONTENT MAY BE DESIGNED TO HELP CLIENTS COMPLY WITH
<br />APPLICABLE LAWS AND REGULATIONS, MRI HEREBY DISCLAIMS ALL
<br />WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE
<br />SOFTWARE AND CONTENT IN THIS REGARD; MOREOVER, VARIOUS STATE
<br />LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE STATE
<br />LAW REQUIREMENTS. ALL SUCH LAWS AND REGULATIONS MAY CHANGE
<br />FROM TIME TO TIME, AND Till SOFTWARE AND CONTENT MAY NOT BE
<br />UPDATED TO REFLECT SUCH CHANGES. CLIENT SHOULD CONSULT AN
<br />ATTORNEY WITH RESPECT TO COMPLIANCE WITH ALL APPUCABLE LAWS
<br />AND REGULATIONS.
<br />8.2 Connection Over Internet. CLIENT ACKNOWLEDGES THAT USE
<br />OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR
<br />UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS
<br />AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CUENT DATA.
<br />ACCORDINGLY, MRI CANNOT AND DOE$ NOT GUARANTY THE PRIVACY,
<br />SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED
<br />OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
<br />83 Limitation of Liability. TO TI IE FULLEST EXTENT PERMITTED BY
<br />LAW, MRI'S TOTAL LIABILITY (INCLUDING ATTORNEYS' FEES AWARDED
<br />UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY
<br />THIRD PARTIES UNDER THE AGREEMENT, EXCLUDING LIABILITY PURSUANT
<br />TO SECTION 7 (Indemnification). WILL BE LIMITED TO (it WITH RESPECT
<br />TO PERPETUAL SOFTWARE LICENSES OR PROFESSIONAL SERVICES, THE
<br />FEES PAID BY CLIENT FOR THE SOFTWARE OR SERVICE WHICH IS THE
<br />SUBJECT MATTER OF THE CLAIM LESS 1/36 THEREOF FOR EACH MONTH
<br />OR PORI ION IHEREOF SINCE IHL COMMENCLMLNI DALE AND (II) WIIH
<br />RESPECT TO SAAS SERVICES, TERM LICENSES AND MAINTENANCE AND
<br />SUPPORT,THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR THE
<br />SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.
<br />8.4 Third Party Software and Content. WITH RESPECT TO ANY THIRD
<br />PARTY SOFTWARE OR CONTENT PROVIDED TO CLIENT UNDER THE
<br />AGREEMENT, INCLUDING ANY MODULES OF THE SAAS SERVICES THAT MAY
<br />CONTAIN THIRD PARTY SOFTWARE OR CONTENT, CLIENT AGREES THAT (1)
<br />MRI MAY ADD AND/OR SUBSTITUTE FUNCTIONALLY EQUIVALENT
<br />PRODUCTS FOR ANY THIRD PARTY SOFTWARE IN THE EVENT OF PRODUCT
<br />UNAVAILABILITY, CND -OF -LIFE, OR Cl IANGES TO SOFTWARE
<br />REQUIREMENTS; (II) THE PROVISION OF CONTENT IS SUBJECT TO
<br />AVAILABILITY FROM THIRD PARTY CONTENT PROVIDERS AND MRI SHALL
<br />HAVE NO LIABILITY SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR
<br />ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE
<br />COMMERCIAL TERMS; (1II) CLIENT'S USE OF ANY TI IIRD PARTY SOFTWARE
<br />SHALL BE SUBJECT TO. AND CLIENT AND USERS SHALL COMPLY WITH. THE
<br />AGREEMENT AND ANY APPLICABLE THIRD PARTY EULAS; (IV) MRI MAKES
<br />NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY
<br />CONTENT; AND (V) CLIENT'S SOLE REMEDY WITH RESPECT TO SUCH THIRD
<br />PARTY SOFTWARE SHALL BE PURSUANT TO THE ORIGINAL LICENSOR'S
<br />WARRANTY, IF ANY, TO MRI, TO THE EXTENT PERMITTED BY THE ORIGINAL
<br />LICENSOR. CONTENT AND THIRD PARTY SOFTWARE ARE MADE AVAILABLE
<br />ON AN "AS IS, As AVAILABLE" BASIS.
<br />8.5 No Special Damages. 114140 EVENT WILL MRI OR CLIENT BE LIABLE
<br />TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
<br />FXFMPI ARV, PUNITIVF, TRFRI F OR CONSFQUFNTIAI DAMAGFS
<br />(INCLUDING, WITI OUT LIMITATION, LOSS OF BUSINESS, REVENUE,
<br />PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC
<br />ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF
<br />WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
<br />OTHERWISE, WHETHER OR NOT THE PARTY HAS PREVIOUSLY BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTY THAT ANY
<br />SOFTWARE, SAAS SERVICE, CONTENT, DEUVERABLES OR OTHER SERVICES 8.6 Time to Bring Claim. NO CLAIM ARISING OUT OF THE
<br />ARE ERROR -FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT AGRELMLNI, REGARDLESS OF FORM, MAY BE BROUGHI AGAINSI IHL
<br />ALL ERRORS WILL RE CORRECTED; (ll) ANY AND ALL IMPLIED WARRANTIES OTI IEk PARTY MORE TI IAN TI IE SI IORTER OF ONE YEAR OR TI IE MINIMUM
<br />OF MERCHANT f' }�� �.1I AS OCCURRED.
<br />Qianr. HousinPY-1�rlf�-�F1tHA City
<br />of Santa Ana MRI Confrdennat3 - 36 1z?01
<br />
|