Yokogawa DAQWORX - Manual (Page 5)

5 IM WX1000-01E
Software License Agreement
4. Limited Warranty
4.1 The Software Product shall be provided to you on an "as is" basis at the time of delivery and except for physical damage to the recording
medium containing the Software Product, Yokogawa and Supplier shall disclaim all of the warranties whatsoever, express or implied, and
all liabilities therefrom. If any physical defect is found on the recording medium not later than twelve (1) months from delivery, Yokogawa
shall replace such defective medium free of charge, provided that the defective medium shall be returned to the service office designated
by Yokogawa at your expense within the said twelve (1) months. THIS LIMITED WARRANTY PROVIDED IN THIS CLAUSE IS IN LIEU
OF ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER AND YOKOGAWA HEREBY DISCLAIMS ALL OTHER WARRANTIES
RELATING TO THE SOFTWARE PRODUCT, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY,
FUNCTIONALITY, APPROPRIATENESS, ACCURACY, RELIABILITY AND RECENCY. IN NO EVENT SHALL YOKOGAWA WARRANT
THAT THERE IS NO INCONSISTENCY OR INTERFERENCE BETWEEN THE SOFTWARE PRODUCT AND OTHER SOFTWARE NOR
SHALL BE LIABLE THEREFOR. The warranty provisions of the applicable law are expressly excluded to the extent permitted.
4. At the sole discretion of Yokogawa, Yokogawa may upgrade the Software Product to the new version number ("Upgrade") and make it
available to you at your expense or free of charge as Yokogawa deems fit. In no event shall Yokogawa be obliged to upgrade the Software
Product or make the Upgrade available to you.
4.3 Certain maintenance service may be available for some types of Software Product at Yokogawa's current list price. Scope and terms and
conditions of the maintenance service shall be subject to those separately provided by Yokogawa. Unless otherwise provided in Yokogawa
catalogues or General Specifications, maintenance services will be available only for the latest version and the immediately preceding
version. In no event will service for the immediately preceding version be available for more than 5 years after the latest version has been
released. In addition, no service will be provided by Yokogawa for the Software Product which has been discontinued for more than 5
years. Notwithstanding the foregoing, maintenance service may not be available for non-standard Software Product. Further, in no event
shall Yokogawa provide any service for the Software Product which has been modified or changed by any person other than Yokogawa.
5. Infringement
5.1 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 Software Product), trade mark, copyright or other intellectual property rights ("Claim"), you shall
promptly notify Yokogawa thereof in writing.
5. 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.
5.3 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, terminate this Agreement and refund you the paid-up amount of the book value of the Software Product as depreciated.
5.4 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 infringement 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.
5.5 This section states the entire liability of Yokogawa and its suppliers and the sole remedy of you with respect to any claim of infringement
of a third party's intellectual property rights. Notwithstanding anything to the contrary stated herein, with respect to the claims arising from
or related to the Third Party Software or OSS, the special terms and conditions separately provided for such Third Party Software or OSS
shall prevail.
6. Limitation of Liability
6.1 EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT LAWFULLY BE EXCLUDED IN CONTRACT, 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 NEGLIGENCE),
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 5) SHALL EXCEED THE DEPRECIATED VALUE
OF THE LICENSE FEE PAID TO YOKOGAWA FOR THE USE OF THE CONCERNED PART OF THE SOFTWARE PRODUCT. If
the Software Product delivered by Yokogawa is altered, modified or combined with other software or is otherwise made different from
Yokogawa catalogues, General Specifications, basic specifications, functional specifications or manuals without Yokogawa's prior written
consent, Yokogawa shall be exempted from its obligations and liabilities under this Agreement or law.
6. Any claim against Yokogawa based on any cause of action under or in relation to this Agreement must be given in writing to Yokogawa
within three (3) months after the cause of action accrues.