|
<br /> 7 Cartegraph_MPA 04-2013
<br />C. Provided that the Software is used in a manner for which it was designed as set forth in the Software, Cartegraph’s
<br />sole obligation and liability hereunder for the Software shall be to use reasonable efforts to remedy any substantial
<br />non-conformance which is reported to Cartegraph. In the alternative, Cartegraph may refund amounts paid by
<br />Customer pursuant to Purchase Agreements for such Software products.
<br />D. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
<br />IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
<br />NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE LICENSED HEREUNDER.
<br />E. SUPPORT, SERVICES AND HOSTING SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES,
<br />EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE. SUPPORT, SERVICES AND HOSTING PROVIDED UNDER THIS
<br />AGREEMENT DO NOT ASSURE THE UNINTERRUPTED OPERATION OF THE SOFTWARE.
<br />F. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THE SOFTWARE LICENSE,
<br />SUPPORT OR SERVICES. THE REMEDY SET FORTH IN THIS SECTION IS CARTEGRAPH’S SOLE LIABILITY,
<br />AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, IN LIEU OF ALL OTHERS, FOR ANY BREACH BY
<br />CARTEGRAPH OF ITS SOFTWARE, SUPPORT, SERVICES AND HOSTING WARRANTIES HEREUNDER.
<br />12. Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW:
<br />A. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
<br />SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST
<br />PROFITS OR LOSS OF DATA, HOWEVER ARISING, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES;
<br />B. EXCEPT FOR DAMAGES RESULTING FROM BODILY INJURY OR PATENT OR COPYRIGHT INFRINGEMENT,
<br />AS DISCUSSED BELOW, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY TO
<br />THE OTHER UNDER THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY,
<br />EXCEED THE AMOUNT PAID BY CUSTOMER TO CARTEGRAPH DURING THE TWELVE (12) MONTH PERIOD
<br />IMMEDIATELY PRECEDING THE EVENT GIVING CAUSE TO SUCH LIABILITY.
<br />C. If Cartegraph will provide Support or Services at Customer’s location, liability of Cartegraph arising out of bodily
<br />injury, shall not in any event exceed the limits of its insurance coverage.
<br />13. Insurance. If Cartegraph will provide Support or Services at Customer’s location, Ca rtegraph will carry commercial
<br />general liability insurance with a limit of $1,000,000 per occurrence and a $2,000,000 aggregate limit, business auto
<br />liability insurance with a limit of $1,000,000 and workers compensation insurance with statutory coverage. Cartegraph
<br />agrees to hold harmless and defend Customer and its agents, officials and employees from bodily injury and property
<br />damage claims related to or caused by the sole negligence of Cartegraph employees or contractors.
<br />14. U.S. Government Restricted Rights. The Software is commercial software and the Software is provided with restricted
<br />rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in paragraph (c)(1)(ii) of t he
<br />Rights in Technical Data and Computer Software Clause at DFARS 252.227-7013 of subparagraphs (c)(1) and (2) of the
<br />Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
<br />15. Employees and Conflicts of Interest. This Agreement shall not prevent Cartegraph from performing sim ilar services or
<br />restrict Cartegraph’s use of the employees or contractors provided under this Agreement.
<br />16. Proprietary Rights and Confidential Information of Cartegraph.
<br />A. Certain information and materials supplied by Cartegraph with the Products, such as, without limitation, deliverables,
<br />manuals, diagrams, drawings, plans, flowcharts, software, technical processes and formulae, source codes, product
<br />designs, sales, costs and other unpublished financial information, product and business plans, usage rates,
<br />relationships, projects and data, are Cartegraph’s or Third Party Licensors’ confidential or proprietary trade secrets
<br />(the “Confidential Information”) and Cartegraph furnishes them solely to assist Customer in the installation, operation
<br />and use of Software. Customer must not reproduce, copy or disclose such Confidential Information except as is
<br />reasonable and necessary to properly use Software. Nothing herein shall restrict Customer from complying with its
<br />obligations under any law requiring disclosure, but Customer shall give Cartegrap h five days prior notice before any
<br />release of Confidential Information.
<br />B. Customer acknowledges and agrees that Cartegraph or Third Party Licensors shall suffer irreparable injury not
<br />compensable by money damages and therefore shall not have an adequate remedy at law in the event of an
<br />unauthorized use of proprietary rights or an unauthorized use or disclosure of any Confidential Information in breach
<br />of the provisions of this Agreement. Accordingly, Cartegraph or Third Party Licensors shall be entitled to i njunctive
<br />relief to prevent or curtail any such breach, threatened or actual. The foregoing shall be in addition and without
<br />prejudice to such rights that Cartegraph or Third Party Licensors may have at law or in equity.
<br />17. Proprietary Information of Customer.
<br />A. In order to provide Products under this Agreement, Customer may, from time to time, disclose to Cartegraph certain
<br />information respecting Customer’s technical, financial, statistical and personnel data, (hereinafter “Information”). Any
|