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functional equivalent, in which case you will stop running the allegedly infringing Tyler Software
<br />immediately. Alternatively, we may decide to litigate the claim to judgment, in which case you
<br />may continue to use the Tyler 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
<br />is enjoined by a court of competent jurisdiction, in addition to paying any adverse final
<br />judgment (or settlement to which we consent), we will, at our option, either: (a) procure the
<br />right to continue its use; (b) modify it to make it non -infringing; (c) replace it with a functional
<br />equivalent; or (d) terminate this Agreement and refund you the prepaid but unused SaaS Fees
<br />for the year in which the Agreement terminates. We will pursue those options in the order
<br />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 defend and indemnify you and your agents, officials, and employees from and against
<br />any and all third -party claims, losses, liabilities, damages, costs, and expenses (including
<br />reasonable attorney's fees and costs) for (a) personal injury or property damage to the extent
<br />caused by our negligence or willful misconduct; or (b) our violation of a law applicable to our
<br />performance under this Agreement. You must notify us promptly in writing of the claim and
<br />give us sole control over its defense or settlement. You agree to provide us with reasonable
<br />assistance, cooperation, and information in 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
<br />agents, officials, and employees from and against any and all third -party claims, losses,
<br />liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for
<br />personal injury or property damage to the extent caused by your negligence or willful
<br />misconduct; or (b) your violation of a law applicable to your performance under this Agreement.
<br />We will notify you promptly in writing of the claim and will give you sole control over its defense
<br />or settlement, We agree to provide you with reasonable assistance, cooperation, and
<br />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
<br />WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT
<br />NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR 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 ATHEORY OF
<br />CONTRACTOR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE LIMITED TO YOUR
<br />ACTUAL DIRECT DAMAGES, NOT TO EXCEED (A) DURING THE INITIAL TERM, ASSET FORTH IN
<br />SECTION F(1) "TERM", TOTAL FEES PAID AS OF THE TIME OF THE CLAIM; OR (B) DURING ANY
<br />RENEWAL TERM, THE THEN -CURRENT ANNUAL SAAS FEES PAYABLE IN THAT RENEWAL TERM. THE
<br />PARTIES ACKNOWLEDGE AND AGREE THAT THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN
<br />RELIANCE UPON THIS LIMITATION OF LIABILITY AND TO THE MAXIMUM EXTENT ALLOWED UNDER
<br />APPLICABLE LAW, THIS SECTION G(4) "LIMITATION OF LIABILITY" AND SECTION G(5) "EXCLUSION OF
<br />CERTAIN DAMAGES" SHALL APPLY REGARDLESS OF THE FAILURE OF AN ESSENTIAL PURPOSE OR
<br />REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE
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