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HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGE. THESE LIMITATIONS SHALL APPLY
<br />NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
<br />PURPOSE OF ANY LIMITED REMEDY.
<br />7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN
<br />ARTICLE 8— INFRINGEMENT INDEMNITY, ESRI'S TOTAL
<br />CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES
<br />OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED
<br />TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
<br />LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION,
<br />OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID
<br />BY LICENSEE FOR ENTERPRISE SOFTWARE PURSUANT TO
<br />THIS ELA.
<br />7.3 Applicability of Disclaimers and Limitations. The parties
<br />agree that ESRI has set its prices and entered into this ELA in
<br />reliance upon the disclaimers and limitations set forth herein, that
<br />the same reflect an allocation of risk between the parties, and that
<br />the same form an essential basis of the bargain between the
<br />parties. THESE LIMITATIONS SHALL APPLY
<br />NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
<br />PURPOSE OF ANY LIMITED REMEDY.
<br />ARTICLE 8— INFRINGEMENT INDEMNITY
<br />8.1 ESRI shall defend, indemnify, and hold harmless Licensee
<br />from and against any loss, liability, cost, or expense, including
<br />reasonable attorneys' fees, which may be incurred by Licensee
<br />against any claims, actions, or demands by a third party alleging
<br />that the Software infringes a U.S. patent, copyright, or trademark
<br />provided
<br />a. Licensee promptly notifies ESRI in writing of the claim;
<br />b. Licensee provides documents clearly describing the
<br />allegations of infringement;
<br />c. ESRI has sole control of the defense of any actions and
<br />negotiations related to the defense or settlement of any
<br />claim; and
<br />d. Licensee cooperates fully in the defense of the claim.
<br />8.2 If the Software is found to infringe a U.S. patent, copyright, or
<br />trademark, ESRI, at its own expense, may either (i) obtain rights
<br />for Licensee to continue using the Software or (ii) modify the
<br />allegedly infringing elements of the Software while maintaining
<br />substantially similar software functionality or data /informational
<br />content. If neither alternative is commercially reasonable, the
<br />infringing items shall be returned to ESRI, the license shall
<br />terminate, and Licensee shall uninstall the infringing items. ESRI's
<br />entire liability shall then be to indemnify Licensee pursuant to
<br />section 8.1 and to refund a portion of the fees paid by Licensee in
<br />the current fee payment period. The refund will be calculated for
<br />the time remaining for the fee payment period, starting from the
<br />notice date of infringement to the end of the fee payment period.
<br />8.3 ESRI shall have no obligation to defend Licensee or to pay
<br />any resulting costs, damages, or attorneys' fees for any claims or
<br />demands alleging direct or contributory infringement of the
<br />Software by (i) the combination of or integration with a product,
<br />process, or system not supplied by ESRI; (ii) material alteration by
<br />anyone other than ESRI or contractors acting on behalf of ESRI;
<br />(iii) use after Licensee has been notified of possible infringement;
<br />or (iv) use after modifications are provided or a return is ordered
<br />by ESRI under section 8.2.
<br />8.4 In no event shall the indemnification set forth in this Article 8
<br />apply to any Samples or hot fixes delivered hereunder.
<br />THE FOREGOING STATES THE ENTIRE OBLIGATION OF
<br />ESRI AND ITS DISTRIBUTOR WITH RESPECT TO
<br />INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF
<br />INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
<br />ARTICLE 9— GENERAL PROVISIONS
<br />9.1 Future Versions. Updated or new Enterprise Software may
<br />require additional or revised terms and conditions. Terms and
<br />conditions subject to revision are limited to Article 1— Definitions,
<br />Article 4 —Scope of Use and Exhibit 1 —Scope of Use (E300), or
<br />any term as required by law. ESRI may provide notice of the
<br />revisions to Licensee in writing or by posting them on ESRI's Web
<br />site at www.esri.com /legal. The revisions shall be incorporated
<br />into this ELA upon use of the updated or new Enterprise
<br />Software. Should Licensee reject the revisions, then Licensee
<br />shall not install or use the revised, updated, or new Enterprise
<br />Software.
<br />9.2 Export Control Regulations. Licensee expressly
<br />acknowledges and agrees that Licensee shall not export,
<br />reexport, transfer, or release the Enterprise Software, in whole or
<br />in part, to (i) any U.S. embargoed country (or to national or
<br />resident of any U.S. embargoed country); (ii) any person on the
<br />U.S. Treasury Department's list of Specially Designated
<br />Nationals; (iii) any person or entity on the U.S. Commerce
<br />Department's Table of Denial Orders; or (iv) any person or entity
<br />to where such export, reexport, or provision violates any U.S.
<br />export control laws or regulations including, but not limited to, the
<br />terms of any export license or licensing provision and any
<br />amendments and supplemental additions to U.S. export laws as
<br />they may occur from time to time.
<br />9.3 Taxes and Fees. Sales or use taxes for the fees quoted are
<br />as required by law. The tax amount may change depending on
<br />the time lapse between this quote and date of the invoice. ESRI
<br />will include applicable sales or use taxes on your invoice unless
<br />you provide proof with your order that your organization or use of
<br />the product is tax exempt.
<br />9.4 No Implied Waivers. The failure of either party to enforce any
<br />provision of this ELA shall not be deemed a waiver of the
<br />provisions or of the right of such party thereafter to enforce that or
<br />any other provision.
<br />9.5 Severability. The parties agree that if any provision of this
<br />ELA is held to be unenforceable for any reason, such provision
<br />shall be reformed only to the extent necessary to make the intent
<br />of the language enforceable.
<br />9.6 Successor and Assigns. Licensee shall not assign,
<br />sublicense, or transfer Licensee's rights or delegate its obligations
<br />under this ELA without ESRI's prior written consent, and any
<br />attempt to do so without consent shall be void. This ELA shall be
<br />binding upon the respective successors and assigns of the parties
<br />to this ELA.
<br />9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8,
<br />and 9 of this ELA shall survive the expiration or termination of this
<br />ELA.
<br />9.8 Equitable Relief. The parties agree that any breach of this
<br />ELA may cause irreparable damage and that, in the event of such
<br />breach, in addition to any and all remedies at law, a party shall
<br />have the right to seek an injunction, specific performance, or other
<br />equitable relief in any court of competent jurisdiction.
<br />9.9 Governing Law. This ELA shall be governed by and
<br />construed in accordance with the laws of the state in which
<br />Licensee is located without reference to conflict of laws principles,
<br />except that U.S. federal law shall govern in matters of intellectual
<br />property.
<br />ARTICLE 10 —ELA MAINTENANCE
<br />ELA Maintenance for Software provided under this ELA is
<br />included with the ELA Fee. ELA Maintenance includes standard
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