Dell XC Web-Scale Converged Appliance - Manual (Page 5)

7 LIMITATION OF LIABILITY: TO THE FULLEST EXTENT
PERMITTED BY LAW, NUTANIX AND ITS LICENSORS SHALL NOT BE
LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT
(INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE
THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, INCIDENTAL DAMAGES, EVEN IF COMPANY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE
THAT YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR
PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE,
USED IN CONNECTION WITH THE SOFTWARE. IN ANY CASE,
COMPANY’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY
UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE
REPLACEMENT OF THE SOFTWARE FOUND TO BE DEFECTIVE,
WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED
BY THE NEGLIGENCE OF COMPANY TO THE EXTENT APPLICABLE
LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.
8 Infringement: Nutanix shall defend or settle, at its own expense, any third-
party action against you to the extent based upon a claim that the Software
infringes any copyright or trademark or misappropriates any trade secret, and
will pay such damages or costs as are finally awarded against you attributable
to such claim, provided that you (i) notify Nutanix promptly in writing of any
such action, (ii) give Nutanix sole control of the defense and/or settlement of
such action, and (iii) give Nutanix all reasonable information and assistance,
and (iv) are not in material breach of this Agreement. Should the Software
become, or in the opinion of Nutanix be likely to become, the subject of such
an infringement claim, Nutanix may replace or modify, in whole or in part, the
Software to make it non-infringing. Nutanix assumes no liability hereunder
for: (i) any method or process in which the Software may be used; (ii) its
compliance with your specifically requested specifications; (iii) use of software
other than a current unaltered release of the Software; (iv) the combination,
operation or use of the Software with non-Nutanix products or services; or (v)
use of any older version of the Software when the use of a newer release of the
Software made available to you would have avoided the infringement, and you
shall indemnify and hold harmless Nutanix and its officers, directors,
employees, agents, successors and assigns against any damages, losses, and
expenses (including reasonable attorneys’ fees) arising from any third-party
action to the extent based upon a claim that the Software infringes any
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