IM 735201-01E
iii
Article 3 (Restriction of Specific Use)
3.1 The Licensed Software shall not be intended specifically to be designed, developed, constructed, manufactured, distributed
or maintained for the purpose of the following events:
a. Operation of any aviation, vessel, or support of those operations from the ground;,
b. Operation of nuclear products and/or facilities;,
c. Operation of nuclear weapons and/or chemical weapons and/or biological weapons; or
d. Operation of medical instrumentation directly utilized for humankind or the human body.
3.2 Even if the Licensee uses the Licensed Software for the purposes in the preceding Paragraph 3.1, Yokogawa has no liability
to or responsibility for any demand or damage arising out of the use or operations of the Licensed Software, and the
Licensee agrees, on its own responsibility, to solve and settle the claims and damages and to defend, indemnify or hold
Yokogawa totally harmless, from or against any liabilities, losses, damages and expenses (including fees for recalling the
Products and reasonable attorney’s fees and court costs), or claims arising out of and related to the above-said claims and
damages.
Article 4 (Warranty)
4.1 The Licensee shall agree that the Licensed Software shall be provided to the Licensee on an "as is" basis when delivered. If
defect(s), such as damage to the medium of the Licensed Software, attributable to Yokogawa is found, Yokogawa agrees to
replace, free of charge, any Licensed Software on condition that the defective Licensed Software shall be returned to
Yokogawa’s specified authorized service facility within seven (7) days after opening the Package at the Licensee’s expense.
As the Licensed Software is provided to the Licensee on an "as is" basis when delivered, in no event shall Yokogawa
warrant that any information on or in the Licensed Software, including without limitation, data on computer programs and
program listings, be completely accurate, correct, reliable, or the most updated.
4.2 Notwithstanding the preceding Paragraph 4.1, when third party software is included in the Licensed Software, the warranty
period and terms and conditions that apply shall be those established by the provider of the third party software.
4.3 When Yokogawa decides in its own judgement that it is necessary, Yokogawa may from time to time provide the Licensee
with Revision upgrades and Version upgrades separately specified by Yokogawa (hereinafter called "Updates").
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 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.
4.6 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.
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), copy right, and any other rights
relating to any of the Licensed Software, the Licensee shall notify Yokogawa in writing to that effect without delay.
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.
