Yokogawa Data Logging Software GA10 - Manual (Page 5)

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IM 04L65B01-01EN
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.
6.2 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.
7. Export Control
You agree not to export or provide to any other countries, whether directly or indirectly, the Software Product, in whole or in part, without prior written consent of Yokogawa.
If Yokogawa agrees such exportation or provision, you shall comply with the export control and related laws, regulations and orders of Japan, the United States of America,
and any other applicable countries and obtain export/import permit and take all necessary procedures under your own responsibility and at your own expense.
8. Audit; Withholding
8.1 Yokogawa shall have the right to access and audit your facilities and any of your records, including data stored on computers, in relation to the use of the Software Product
as may be reasonably necessary in Yokogawa’s opinion to verify that the requirements of this Agreement are being met.
8.2 Even after license being granted under this Agreement, should there be any change in circumstances or environment of use which was not foreseen at the time of delivery
and, in Yokogawa’s reasonable opinion, is not appropriate for using the Software Product, or if Yokogawa otherwise reasonably believes it is too inappropriate for you to
continue using the Software Product, Yokogawa may suspend or withhold the license provided hereunder.
9. Assignment
If you transfer or assign the Software Product to a third party, you shall expressly present this Agreement to the assignee to ensure that the assignee comply with this
Agreement, transfer all copies and whole part of the Software Product to the assignee and shall delete any and all copy of the Software Product in your possession
irretrievably. This Agreement shall inure to the benefit of and shall be binding on the assignees and successors of the parties.
10. Termination
Yokogawa shall have the right to terminate this Agreement with immediate effect upon notice to you, if you breach any of the terms and conditions hereof. Upon termination of
this Agreement, you shall promptly cease using the Software Product and, in accordance with sub-clause 2.5, return or irretrievably delete all copies of the Software Product,
certifying the same in writing. In this case the license fee paid by you for the Software Product shall not be refunded. Clauses 2.4 and 2.5, 3, 5, 6 and 11 shall survive any
termination of this Agreement.
11. Governing Law; Disputes
This Agreement shall be governed by and construed in accordance with the laws of Japan.
Any dispute, controversies, or differences which may arise between the parties hereto, out of, in relation to or in connection with this Agreement (“Dispute”) shall be resolved
amicably through negotiation between the parties based on mutual trust. Should the parties fail to settle the Dispute within ninety (90) days after the notice is given from either
party to the other, the Dispute shall be addressed in the following manner:
(i) If you are a Japanese individual or entity, the Dispute shall be brought exclusively in the Tokyo District Court (The Main Court) in Japan.
(ii) If you are not a Japanese individual or entity, the Dispute shall be finally settled by arbitration in Tokyo, Japan in accordance with the Commercial Arbitration Rules of
the Japan Commercial Arbitration Association. All proceedings in arbitration shall be conducted in the English language, unless otherwise agreed. The award of arbitration
shall be final and binding upon both parties, however, each party may make an application to any court having jurisdiction for judgment to be entered on the award and/or for
enforcement of the award.
12. Miscellaneous
12.1 This Agreement supersedes all prior oral and written understandings, representations and discussions between the parties concerning the subject matter hereof to the extent
such understandings, representations and discussions should be discrepant or inconsistent with this Agreement.
12.2 If any part of this Agreement is found void or unenforceable, it shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according
to its terms and conditions. The parties hereby agree to attempt to substitute for such invalid or unenforceable provision a valid or enforceable provision that achieves to the
greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
12.3 Failure by either party to insist on performance of this Agreement or to exercise a right when entitled does not prevent such party from doing so at a later time, either in relation
to that default or any subsequent one.
End of document
Software Licensing Agreement