|
Software, we may, at our expense and without obligation to do so, either: (a) procure for you the right
<br />to continue its use; (b) modify it to make it non -infringing; or (c) replace it with a functional equivalent,
<br />in which case you will stop running the allegedly infringing Tyler Software immediately. Alternatively,
<br />we may decide to litigate the claim to Judgment, in which case you may continue to use the Tyler
<br />Software consistent with the terms of this Agreement.
<br />1.4 If an infringement or misappropriation claim is fully litigated and your use of the Tyler Software is
<br />enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or
<br />settlement to which we consent), we will, at our option, either: (a) procure the right to continue its use;
<br />(b) modify it to make it non -infringing; (c) replace it with a functional equivalent; or (d) terminate your
<br />license and refund the license fees paid for the infringing Tyler Software, as depreciated on a straight-
<br />line basis measured over seven (7) years from the Effective Bate. We will pursue those options in the
<br />order listed herein. This section provides your exclusive remedy for third party copyright, patent, or
<br />trademark infringement and trade secret misappropriation claims.
<br />2. General Indemnification.
<br />2,1 We will indemnify and hold harmless you and your agents, officials, and employees from and against any
<br />and all third -party claims, losses, liabilities, damages, costs, and expenses (including reasonable
<br />attorney's fees and costs) for (a) personalinjury or property damage to the extent caused by our
<br />negligence or willful misconduct; or (b) our violation of a law applicable to our performance under this
<br />Agreement. You must notify us promptly in writing of the claim and give us sole control over its defense
<br />or settlement. You agree to provide us with reasonable assistance, cooperation, and information in
<br />defending the claim at our expense.
<br />2.2 To the extent permitted by applicable law, you will indemnify and hold harmless us and our agents,
<br />officials, and employees from and against any and all third -party claims, losses, liabilities, damages,
<br />costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property
<br />damage to the extent caused by your negligence or willful misconduct; or (b) your violation of a law
<br />applicable to your performance under this Agreement. We will notify you promptly in writing of the
<br />claim and will give you sole control over its defense or settlement. We agree to provide you with
<br />reasonable assistance, cooperation, and information in defending the claim at your expense.
<br />3. DISCLAIMER. EXCEPT FOR THE (EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO THE
<br />MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,WE HEREBY DISCLAIM ALL OTHER WARRANTIES
<br />AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY
<br />IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
<br />PURPOSE.
<br />4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, OUR
<br />LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON A THEORY OF
<br />CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE LIMITED TO YOUR ACTUAL
<br />DIRECT DAMAGES, NOT TO EXCEED (A) PRIOR TO FORMAL TRANSITION TO MAINTENANCE AND SUPPORT,
<br />THE TOTAL ONE-TIME FEES SET FORTH IN THE INVESTMENT SUMMARY; OR (B) AFTER FORMAL
<br />TRANSITION TO MAINTENANCE AND SUPPORT, THE THEN -CURRENT ANNUAL MAINTENANCE AND
<br />SUPPORT FEE. THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN RELIANCE UPON THIS LIMITATION
<br />OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT
<br />TO SECTIONS H(1) AND H(2).
<br />
|