Yokogawa PC-Based MX100 - Manual (Page 4)

iii
IM MX190-01E
4.3 When Yokogawa decides in its own judgement that it is necessary, Yokogawa may from time to time provide the Licensee with Revision
upgrades and Version upgrades separately specified by Yokogawa (hereinafter called “Updates”).
4.4 Notwithstanding the preceding Paragraph 4.3, in no event shall Yokogawa provide Updates where the Licensee or any third party conducted
renovation or improvement of the Licensed Software.
4.5 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE,
WRITTEN, ORAL, OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY YOKOGAWA AND ALL THIRD PARTIES LICENSING THIRD
PARTY SOFTWARE TO YOKOGAWA.
4.6 Correction of nonconformity in the manner and for the period of time provided above shall be the Licensee’s sole and exclusive remedy for
any failure of Yokogawa to comply with its obligations and shall constitute fulfillment of all liabilities of Yokogawa and any third party licensing
the Third Party Software to Yokogawa (including any liability for direct, indirect, special, incidental or consequential damages) whether in
warranty, contract, tort (including negligence but excluding willful conduct or gross negligence by Yokogawa) or otherwise with respect to or
arising out of the use of the Licensed Software.
Article 5 (Infringement)
5.1 If and when any third party should demand injunction, initiate a law suit, or demand compensation for damages against the Licensee under
patent right (including utility model right, design patent, and trade mark), copy right, and any other rights relating to any of the Licensed
Software, the Licensee shall notify Yokogawa in writing to that effect without delay.
5.2 In the case of the preceding Paragraph 5.1, the Licensee shall assign to Yokogawa all of the rights to defend the Licensee and to negotiate
with the claiming party. Furthermore, the Licensee shall provide Yokogawa with necessary information or any other assistance for
Yokogawa’s defense and negotiation. If and when such a claim should be attributable to Yokogawa, subject to the written notice to
Yokogawa stated in the preceding Paragraph 5.1, Yokogawa shall defend the Licensee and negotiate with the claiming party at Yokogawa’s
cost and expense and be responsible for the final settlement or judgment granted to the claiming party in the preceding Paragraph 5.1.
5.3 When any assertion or allegation of the infringement of the third party’s rights defined in Paragraph 5.1 is made, or when at Yokogawa’s
judgment there is possibility of such assertion or allegation, Yokogawa will, at its own discretion, take any of the following countermeasures at
Yokogawa’s cost and expense.
a) To acquire the necessary right from a third party which has lawful ownership of the right so that the Licensee will be able to continue to use
the Licensed Software;
b) To replace the Licensed Software with an alternative one which avoids the infringement; or
c) To remodel the Licensed Software so that the Licensed Software can avoid the infringement of such third party’s right.
5.4 If and when Yokogawa fails to take either of the countermeasures as set forth in the preceding subparagraphs of Paragraph 5.3, Yokogawa
shall indemnify the Licensee only by paying back the price amount of the Licensed Software which Yokogawa has received from the
Licensee. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF YOKOGAWA AND ANY THIRD PARTY LICENSING
THIRD PARTY SOFTWARE TO YOKOGAWA WITH RESPECT TO INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS
INCLUDING BUT NOT LIMITED TO, PATENT AND COPYRIGHT.
Article 6 (Liabilities)
6.1 If and when the Licensee should incur any damage relating to or arising out of the Licensed Software or service that Yokogawa has provided
to the Licensee under the conditions herein due to a reason attributable to Yokogawa, Yokogawa shall take actions in accordance with this
Agreement. However, in no event shall Yokogawa be liable or responsible for any special, incidental, consequential and/or indirect damage,
whether in contract, warranty, tort, negligence, strict liability, or otherwise, including, without limitation, loss of operational profit or revenue,
loss of use of the Licensed Software, or any associated products or equipment, cost of capital, loss or cost of interruption of the Licensee’s
business, substitute equipment, facilities or services, downtime costs, delays, and loss of business information, or claims of customers of
Licensee or other third parties for such or other damages. Even if Yokogawa is liable or responsible for the damages attributable to Yokogawa
and to the extent of this Article 6, Yokogawa’s liability for the Licensee’s damage shall not exceed the price amount of the Licensed Software
or service fee which Yokogawa has received. Please note that Yokogawa shall be released or discharged from part or all of the liability under
this Agreement if the Licensee modifies, remodels, combines with other software or products, or causes any deviation from the basic
specifications or functional specifications, without Yokogawa’s prior written consent.
6.2 All causes of action against Yokogawa arising out of or relating to this Agreement or the performance or breach hereof shall expire unless
Yokogawa is notified of the claim within one (1) year of its occurrence.
6.3 In no event, regardless of cause, shall Yokogawa assume responsibility for or be liable for penalties or penalty clauses in any contracts
between the Licensee and its customers.
Article 7 (Limit of Export)
Unless otherwise agreed by Yokogawa, the Licensee shall not directly or indirectly export or transfer the Licensed Software to any countries other
than those where Yokogawa permits export in advance.
Article 8 (Term)
This Agreement shall become effective on the date when the Licensee receives the Licensed Software and continues in effect unless or until
terminated as provided herein, or the Licensee ceases using the Licensed Software by itself or with Yokogawa’s thirty (30) days prior written notice
to the Licensee.
Article 9 (Injunction for Use)
During the term of this Agreement, Yokogawa may, at its own discretion, demand injunction against the Licensee in case that Yokogawa deems
that the Licensed Software is used improperly or under severer environments other than those where Yokogawa has first approved, or any other
condition which Yokogawa may not permit.
Article 10 (Termination)
Yokogawa, at its sole discretion, may terminate this Agreement without any notice or reminder to the Licensee if the Licensee violates or fails to
perform this Agreement. However, Articles 5, 6, and 11 shall survive even after the termination.
Article 11 (Jurisdiction)
Any dispute, controversies, or differences between the parties hereto as to interpretation or execution of this Agreement shall be resolved
amicably through negotiation between the parties upon the basis of mutual trust. Should the parties fail to agree within ninety (90) days after
notice from one of the parties to the other, both parties hereby irrevocably submit to the exclusive jurisdiction of the Tokyo District Court (main
office) in Japan for settlement of the dispute.
Article 12 (Governing Law)
This Agreement shall be governed by and construed in accordance with the laws of Japan. The Licensee expressly agrees to waive absolutely
and irrevocably and to the fullest extent permissible under applicable law any rights against the laws of Japan which it may have pursuant to the
Licensee’s local law.
Article 13 (Severability)
In the event that any provision hereof is declared or found to be illegal by any court or tribunal of competent jurisdiction, such provision shall be
null and void with respect to the jurisdiction of that court or tribunal and all the remaining provisions hereof shall remain in full force and effect.
Terms and Conditions of the Software License