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6.4 Notwithstanding the foregoing, Yokogawa shall have no obligation nor liability for, and
Licensee shall defend and indemnify Yokogawa and its suppliers from and against, the
Claim, if the infringement is arising from, based on or caused by a) any modification of or
addition to the Software Product or related documentation not provided or approved by
Yokogawa, b) a combination of the Software Product and other equipment, software or
systems, whether or not Yokogawa supplied or suggested such use of combination, c)
design or instruction provided by or on behalf of Licensee, d) not complying with Yokogawa’s
suggestion, e) an act or omission of Licensee, its customers or any other persons than
Yokogawa, except those carried out on the express instruction of Yokogawa, or f) any other
causes not attributable to Yokogawa.
6.5 This section states the entire liability of Yokogawa and its suppliers and the sole remedy
of Licensee with respect to any claim of infringement of third party’s intellectual property
rights. Notwithstanding anything to the contrary stated herein, with respect to the claims
arising from or related to the Third Party Software or OSS, the special terms and conditions
separately provided for such Third Party Software or OSS shall prevail.
7. Limitation of Liability
EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT LAWFULLY BE EXCLUDED OR
LIMITED BY CONTRACT, YOKOGAWA AND SUPPLIERS SHALL NOT BE LIABLE TO
ANY PERSON OR LEGAL ENTITY FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF MATERIALS OR PRODUCTS, LOSS OF PRODUCTION, LOSS
OF CONTRACTS, LOSS OR DESTRUCTION OF DATA, LOSS OF AVAILABILITY AND
THE LIKE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, OR OTHER SIMILAR DAMAGES OF ANY KIND, ARISING OUT OF THE USE OR
INABILITY TO USE OF THE SOFTWARE PRODUCT, OR ARISING OUT OF ITS GENERATED
APPLICATIONS OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
WHETHER BASED IN WARRANTY (EXPRESS OR IMPLIED), CONTRACT, STRICT
LIABILITY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS. IN NO EVENT YOKOGAWA AND SUPPLIER’S AGGREGATE LIABILITY FOR
ANY CAUSE OF ACTION WHATSOEVER (INCLUDING LIABILITY UNDER CLAUSE 5) SHALL
EXCEED THE BOOK VALUE OF THE LICENSE FEE PAID TO YOKOGAWA FOR THE USE OF
THE CONCERNED PART OF THE SOFTWARE PRODUCT.
If the product delivered by Yokogawa is altered, modified or combined with other software or
is otherwise made different from Yokogawa’s General Specifications, basic specifications,
functional specifications or manuals without Yokogawa’s prior written consent, Yokogawa shall be
exempted from its obligations and liabilities under this Agreement or by law.
8. Assignment
Licensee shall not assign its rights or obligations under this Agreement without prior written
consent of Yokogawa. If Licensee novates or assigns this Agreement and the Software Product
with Yokogawa’s consent, Licensee shall transfer all copies and whole part of the Software
Product to the assignee and shall delete any and all copy of the Software Product in possession
irretrievably. This Agreement shall inure to the benefit of and shall be binding on the successors
of the parties.
9. Export Control
Licensee agrees to comply with the export control and related laws, regulations and orders
of Japan, the United States of America, and any other applicable countries and, if Licensee
exports or re-exports the Software Product, to obtain export/import permit and take all necessary
procedures under Licensee’s own responsibility and at Licensee’s own expense.
10. Audit; Withholding
10.1 Yokogawa shall have the right to access and audit Licensee’s facilities and any of
Licensee’s records, including data stored on computers, in relation to the use of the
Software Product as may be reasonably necessary to verify that the requirements of this
Agreement are being met.
10.2 Even after the license being granted under this Agreement, should there be any change in
circumstances or environment of use which was not foreseen at the time of delivery and,
in Yokogawa’s reasonable opinion, is not appropriate for using the Software Product, or if
Yokogawa otherwise reasonably believes it is inappropriate for Licensee to continue using
the Software Product, Yokogawa may suspend or withhold the license provided hereunder.
