|
Client, then this exclusive remedy shall be null and void, at SMI's corresponding to the remaining portion of the year, and in
<br /> option. addition, if such termination takes place during the first year after
<br /> 12.4 As an accommodation to Client,SMI may supply Client with the Delivery Date, a refund of a percentage of the License Fee for
<br /> Limited Production Program(s) or with pre-production releases of such Program corresponding to the remaining portion of the first
<br /> Programs (which may be labeled "Alpha" or "Beta" or "Limited year. The foregoing is Client's exclusive remedy against any and
<br /> Production"). These products are not suitable for production use. all parties for any claim arising from or relating to loss of use of
<br /> SMI does not warrant Limited Production Program(s) or pre- the program or to any other damage arising as a result of this
<br /> provision.
<br /> production releases;these products are distributed"as is".
<br /> 13. OVERALL LIMITATION OF DAMAGES 15. TRAINING
<br /> 13.1 In no case shall the aggregate amount of damages payable 15.1 Upon delivery and installation, SMI will provide Client with
<br /> Training Services as specified on Schedule B upon the payment
<br /> to Client by SMI as ordered payable by a court of competent terms stated therein.Thereafter training services will be provided
<br /> jurisdiction regarding any claim arising from the Program or on the terms and at prices stated in SMI's then current schedule of
<br /> breach or this agreement (including, without limitation, its fees for training services.
<br /> warranty and indemnification provisions) exceed the amounts
<br /> paid by Client to SMI under this Agreement. 16. SOFTWARE SUPPORT
<br /> 14. INDEMNIFICATION 16.1 Software Support for the Program shall consist of the
<br /> 14.1 SMI agrees to indemnify and hold Client harmless against services listed on the Client's current Software Support Schedule,
<br /> any loss,damage,expense,or cost,including reasonable legal fees, which may change from time to time.
<br /> arising out of any claim,demand,or suit asserting that the Program 16.2 During the Warranty Period specified above, Client shall be
<br /> infringes or violates any copyright,patent,trade secret,trademark, entitled to software support without additional charge."Expiration
<br /> or proprietary right existing under the laws of Canada,the United Date"shall mean the date of the expiration of the Warranty Period
<br /> States,or any province or territory thereof("Claim"),subject to the and each subsequent anniversary of such date. Before each
<br /> overall limitation of damages hereunder and provided that the Expiration Date,Client shall be billed for the then applicable annual
<br /> Claim has been reduced to final judgment or has been settled with Software Support Fee. The yearly increase will never exceed the
<br /> the consent of SMI. then current CPI. If Client has paid the applicable Software Support
<br /> Fee on or before the Expiration Date, Client shall be entitled to
<br /> 14.2 The indemnification obligation in this section shall be receive an additional year of Software Support. SMI shall have no
<br /> effective only if(1) at the time of the alleged infringement, Client obligation to provide Software Support after the Expiration Date if
<br /> was using a currently supported version of the Program listed in the applicable Annual Software Support Fee is unpaid.
<br /> SMI's then current Supported Products List,(2)Client gave prompt
<br /> notice of the Claim and permitted SMI to defend,and(3)Client has 16.3 The Software Support Fee shall be sent to SMI at the address
<br /> reasonably cooperated in the defense of the Claim. SMI shall be set forth above, or such other address as SMI may designate.
<br /> entitled to any award of damages or costs awarded by a court of Information as to the amount of the currently applicable Software
<br /> competent jurisdiction with respect to any Claim.SMI shall have no Support Fee for the Program is available from SMI on request.
<br /> obligation to Client to defend or satisfy any Claims made against
<br /> Client that arise from the use,sale,licensing or other disposition of 16.4 SMI's current policy is to support the most recently released
<br /> the Program by Client other than as permitted by this Agreement. version of the Program, provide only telephone support for the
<br /> next prior version and to cease maintenance of earlier versions.
<br /> 14.3 To reduce or mitigate damages,SMI may at its own expense SMI reserves the right to change this policy in its discretion and
<br /> procure the right for Client to continue licensing the Program or reserves the right to discontinue support of Programs or versions
<br /> replace it with a non-infringing product. If SMI supplies a non- of Programs for hardware and/or operating systems that are used
<br /> infringing Release of the Program,Client shall promptly install it on by numbers of Clients that SMI deems inadequate to justify the
<br /> its computer system, and terminate use of prior Releases of the cost of support.SMI shall provide Client with 20 days written notice
<br /> Program. If Client is not entitled to such non-infringing Release of changes in support policy.
<br /> under the terms of the SMI's Software Support arrangement with
<br /> Client,Client shall pay any applicable fee for upgrading to the non- 16.5 Client agrees that in order to receive Software Support for a
<br /> infringing Release, as stated in SMI's then current fee schedule, Program, Client must use a currently supported version of the
<br /> within thirty (30) days of delivery of such Release. If, in its Program as listed in SMI's Supported Products List. Client
<br /> judgment, SMI deems that, due to the Claim or for any other acknowledges and agrees that it may be necessary to update its
<br /> reason,it is not in SMI's practical interest to continue distributing a computer hardware and/or operating system to achieve
<br /> Program, SMI may require Client, upon thirty (30) days written compatibility with the currently supported version. Client
<br /> notice, to terminate use of a Program.Thirty days after notice to acknowledges and agrees that if it has allowed its subscription to
<br /> terminate use of a Program, this Agreement shall terminate as to Software Support to lapse, and if its version of the Program is not
<br /> the Program involved,Client shall receive a refund of a percentage currently supported, it may have to obtain a current version to
<br /> of the current year's Software Support Fee for the Program obtain Software Support,as is discussed below.
<br /> Schedule Masters,Inc. - 3 - Software License and Services Agreement Rev. 20180115
<br />
|