|
amounts pre-paid for the Infringing Product(if the Infringing Product is a software
<br /> Product, i.e., Licensed Software or Subscription Software) or (ii) a credit for the
<br /> Infringing Product, less a reasonable charge for depreciation (if the Infringing
<br /> Product is Equipment, including Equipment with embedded software).
<br /> 7.2.2. In addition to the other damages disclaimed under this Agreement, Motorola will
<br /> have no duty to defend or indemnify Customer for any Infringement Claim that
<br /> arises from or is based upon: (a) Customer Data, Customer-Provided Equipment,
<br /> Non-Motorola Content,or third-party equipment, hardware,software, data,or other
<br /> third-party materials; (b) the combination of the Product or Service with any
<br /> products or materials not provided by Motorola; (c)a Product or Service designed,
<br /> modified, or manufactured in accordance with Customer's designs, specifications,
<br /> guidelines or instructions; (d) a modification of the Product or Service by a party
<br /> other than Motorola; (e) use of the Product or Service in a manner for which the
<br /> Product or Service was not designed or that is inconsistent with the terms of this
<br /> Agreement; or(f)the failure by Customer to use or install an update to the Product
<br /> or Service, after a reasonable time of receiving notification of update by Motorola,
<br /> that is intended to correct the claimed infringement. In no event will Motorola's
<br /> liability resulting from an Infringement Claim extend in any way to any payments
<br /> due on a royalty basis, other than a reasonable royalty based upon revenue
<br /> derived by Motorola from Customer from sales or license of the Infringing Product.
<br /> 7.2.3. This Section 7.2--Intellectual Property Infringement provides Customer's sole
<br /> and exclusive remedies and Motorola's entire liability in the event of an
<br /> Infringement Claim. For clarity, the rights and remedies provided in this Section
<br /> are subject to, and limited by, the restrictions set forth in Section 8 s Limitation
<br /> of Liability below.
<br /> 7.3. Customer Indemnity. Customer will defend, indemnify, and hold Motorola and its
<br /> subcontractors harmless from and against any and all damages, losses, liabilities, and expenses
<br /> (including reasonable fees and expenses of attorneys)arising from any actual or threatened third-
<br /> party claim, demand, action, or proceeding to the extent caused by (a) Customer-Provided
<br /> Equipment, Customer Data, or Non-Motorola Content, including any claim, demand, action, or
<br /> proceeding alleging that any such equipment, data, or materials (or the integration or use thereof
<br /> with the Products and Services) infringes or misappropriates a third-party intellectual property or
<br /> other right, violates applicable law, or breaches the Agreement; (b) Customer-Provided
<br /> Equipment's failure to meet the minimum requirements set forth in the applicable Documentation
<br /> or match the applicable specifications provided to Motorola by Customer in connection with the
<br /> Products or Services; (c) Customer's (or its service providers, agents, employees, or Authorized
<br /> User's) negligence or willful misconduct; and (d) Customer's or its Authorized User's breach of
<br /> this Agreement. This indemnity will not apply to the extent any such claim is caused by Motorola's
<br /> use of Customer-Provided Equipment, Customer Data, or Non-Motorola Content in violation of
<br /> the Agreement. Motorola will give Customer prompt, written notice of any claim subject to the
<br /> foregoing indemnity. Motorola will, at its own expense, cooperate with Customer in its defense or
<br /> settlement of the claim.
<br /> 8. Limitation of Liability.
<br /> 8.1. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR PERSONAL INJURY
<br /> OR DEATH, MOTOROLA, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS,
<br /> DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS
<br /> (COLLECTIVELY, THE "MOTOROLA PARTIES") WILL NOT BE LIABLE IN CONNECTION
<br /> WITH THIS AGREEMENT (WHETHER UNDER MOTOROLA'S INDEMNITY OBLIGATIONS, A
<br /> Motorola Customer Agreement 8
<br />
|