|
shall retain the balance as liquidated damages.
<br />17 Infringement of Patent and Other Proprietary Rights.
<br />(a) ESi represents to Licensee that it has no knowledge of any existing or potential claims that the
<br />Software or Documentation violates or infringes upon any patent, copyright, trade secret or other
<br />propnetary right of a third party.
<br />(b) ESi shall indemnify, defend and hold harmless Licensee from and against all claims, damages, losses,
<br />liabilities and expenses, including reasonable attorneys' fees, arising out of any claim by a third party
<br />asserting that the Software, Documentation, services or any use thereof, infringes such third party's
<br />patent, copyright, trademark, trade secret, confidentiality or other right, provided that Licensee notifies
<br />ESi in writing within a reasonable time after Licensee first receives written notice of the claim and gives
<br />ESi reasonable assistance, at ESi's cost, in the defense or settlement of the claim. If any such
<br />infringement, claim or action is brought or threatened, ESi will, at its sole option and expense. (a) procure
<br />for Licensee the right to continue using the Software; or (b) modify or amend the Software, provided that
<br />such modified Software will have substantially the same or comparable capabilities, or replace the
<br />Software with other software having substantially the same or comparable capabilities; or (c) if neither of
<br />the foregoing is commercially practicable, terminate this Agreement and repay Licensee a portion, if any,
<br />of any license fees for the Software, on a pro rata basis. If terminated, the parties will be released from
<br />any further obligation under this Agreement, except for obligations that survive termination.
<br />18 No Disabling Codes, Timers, Counters, or Other Limitations.
<br />Except for technology controls designed to monitor or enforce the terms of this Agreement, the Software
<br />shall not include or contain any disabling code, timer, clock, counter or other limiting design or routine
<br />which causes the Software to be erased, inoperable or otherwise incapable of being used in the full
<br />manner for which it was designed and licensed pursuant to this Agreement.
<br />19 General Conditions.
<br />(a) Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws
<br />of the State of Georgia (United States of America) regardless of application of choice of law rules or
<br />principles. This Agreement expressly excludes the United Nations Convention on Contracts for the
<br />International Sale of Goods. Unless otherwise elected by ESi at its option and in writing for a particular
<br />instance, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state
<br />or United States District Court having within its jurisdiction the location of ESi's principal place of
<br />business in Augusta, Georgia. Both parties consent to the jurisdiction of such courts and agree that
<br />process may be served in any manner allowed by the laws of the State of Georgia or of the United States.
<br />If Licensee acquires this License in a country other than the United States or its territories, local law may
<br />apply. The original language of this Agreement is English. In case of any discrepancies or conflicts
<br />between the English text version of this Agreement and any translation, the English version shall prevail.
<br />(b) Entire Agreement. This Agreement sets forth the entire understanding and agreement between
<br />Licensee and ESi and may be amended only in a writing signed by both parties. This Agreement
<br />supersedes any and all other Software license agreements, including without limitation, any License
<br />previously granted for any prior version of the Software. In the event of any inconsistency between the
<br />terms and conditions of this Agreement and the terms and conditions of the Documentation or other
<br />licenses delivered with the Software, the terms and conditions of this Agreement shall govern and control.
<br />NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON, OR OTHER PERSON IS
<br />Rev 01/132014
<br />
|