Yokogawa YFGW410 - Manual (Page 12)

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IM 01W02D01-11EN
4.5 Notwithstanding the foregoing, any warranty with respect to the Third Party Software is sub-
ject to the terms and conditions of the Supplier.
4.6 THE ABOVE WARRANTY IS GIVEN AND ACCEPTED AS A SOLE AND EXCLUSIVE
LIABILITY AND IN LIEU OF ALL OTHER LIABILITY OR WARRANTIES OF ANY KIND
WHATSOEVER ON THE PART OF YOKOGAWA OR SUPPLIER, EXPRESS OR IMPLIED,
IN FACT OR IN LAW. ALL IMPLIED WARRANTIES AND ESPECIALLY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGE-
MENT ARE EXPRESSLY EXCLUDED AND DISCLAIMED. The warranty provisions of the
applicable law are expressly excluded to the extent permitted.
5. Maintenance Services
5.1 Scope and terms and conditions of maintenance service for the Software Product shall
be subject to the latest Yokogawa standard terms and conditions of service or otherwise
defined by Yokogawa. Unless otherwise provided in Yokogawa catalogues or General
Specifications, services for the Standard Software Product will be available only for the lat-
est version and the immediately preceding version. In any event service for the immediately
preceding version will be available only for 5 years after the latest version has been re-
leased. In addition, no service will be provided by Yokogawa for the Software Product which
has been discontinued for more than 5 years. As for the Customized Software Product, ba-
sically, Yokogawa will not provide maintenance service after the Warranty Period, provided
that Yokogawa may provide alteration work subject to individual written agreement.
5.2 Notwithstanding otherwise stated in the preceding sub-clause, any maintenance service for
the Third Party Software shall be subject to the terms and conditions provided by the Sup-
plier.
6. Infringement
6.1 If you are warned or receive a claim by a third party that the Software Product in its original
form infringes any third party's patent (which is issued at the time of delivery of the Soft-
ware Product), trade mark, copyright or other intellectual property rights ("Claim"), you shall
promptly notify Yokogawa thereof in writing.
6.2 If the infringement is attributable to Yokogawa, Yokogawa will defend you from the Claim
at Yokogawa's expense and indemnify you from the damages finally granted by the court
or otherwise agreed by Yokogawa out of court. The foregoing obligation and indemnity of
Yokogawa shall be subject to that i) you promptly notify Yokogawa of the Claim in writing as
provided above, ii) you grant to Yokogawa and its designees the full authority to control the
defense and settlement of such Claim and iii) you give every and all necessary information
and assistance to Yokogawa upon Yokogawa's request.
6.3 If Yokogawa believes that a Claim may be made or threatened, Yokogawa may, at its option
and its expense, either a) procure for you the right to continue using the Software Product,
b) replace the Software Product with other software product to prevent infringement, c)
modify the Software Product, in whole or in part, so that it become non-infringing, or d) if
Yokogawa believes that a) through c) are not practicable, refund you the paid-up amount of
the book value of the Software Product as depreciated.
6.4 Notwithstanding the foregoing, Yokogawa shall have no obligation nor liability for, and you
shall defend and indemnify Yokogawa and its suppliers from, the Claim, if the infringe-
ment is arising from a) modification of the Software Product made by a person other than
Yokogawa, b) combination of the Software Product with hardware or software not furnished
by Yokogawa, c) design or instruction provided by or on behalf of you, d) not complying with
Yokogawa's suggestion, or e) any other causes not attributable to Yokogawa.
7. Limitation of Liability
EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT LAWFULLY BE EXCLUDED IN CON-
TRACT, YOKOGAWA AND SUPPLIERS SHALL NOT BE LIABLE TO ANY PERSON OR LEGAL
ENTITY FOR LOSS OR DAMAGE, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR OTHER SIMILAR DAMAGES OF ANY
KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OR DESTRUCTION OF DATA, LOSS OF AVAILABILITY
AND THE LIKE, ARISING OUT OF THE USE OR INABILITY TO USE OF THE SOFTWARE
PRODUCT, OR ARISING OUT OF ITS GENERATED APPLICATIONS OR DATA, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED IN WARRANTY
(EXPRESS OR IMPLIED), CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLI-
GENCE), OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. IN NO EVENT YOKOGAWA
AND SUPPLIER'S AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION WHATSOEVER
(INCLUDING LIABILITY UNDER CLAUSE 6) SHALL EXCEED THE DEPRECIATED VALUE OF