Yokogawa Button Operated DX2000 - Manual (Page 5)

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IM 04L41B01-62EN
4.3 When Yokogawa decides in its own judgement that it is necessary, Yokogawa may from time to time provide the Licensee with Release Upgrades specified by Yokogawa
(hereinafter called “Release Upgrades”).
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 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.
4.6 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.
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), copyright, and any other rights relating to any of the Licensed Software, the Licensee shall promptly notify Yokogawa in
writing to that effect.
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. The Licensee agrees 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. When aforesaid termination or cease is
occurred, the Licensee shall immediately destroy and/or eliminate the Licensed Software and related documents without retaining any copies or extracts thereof. However,
upon specifically instructed by Yokogawa, they shall be returned to Yokogawa or its designated third party.
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 to the fullest extent allowed by applicable law.
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 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