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4 January 2024
<br />United States patent or any copyright or misappropriation of any
<br />trade secret, provided Company is promptly notified of any and
<br />all threats, claims and proceedings related thereto and given
<br />reasonable assistance and the opportunity to assume sole control
<br />over defense and settlement; Company will not be responsible
<br />for any settlement it does not approve in writing. The foregoing
<br />obligations do not apply with respect to portions or components
<br />of the Service (i) not supplied by Company, (ii) made in whole or
<br />in part in accordance with Customer specifications, (iii) that are
<br />modified after delivery by Company, (iv) combined with other
<br />products, processes or materials where the alleged infringement
<br />relates to such combination, (v) where Customer continues
<br />allegedly infringing activity after being notified thereof or after
<br />being informed of modifications that would have avoided the
<br />alleged infringement, or (vi) where Customer’s use of the Service
<br />is not strictly in accordance with this Agreement. If, due to a
<br />claim of infringement, the EV Cloud Subscription Service is held
<br />by a court of competent jurisdiction to be or are believed by
<br />Company to be infringing, Company may, at its option and
<br />expense (a) replace or modify the EV Cloud Subscription Service
<br />to be non-infringing provided that such modification or
<br />replacement contains substantially similar features and
<br />functionality, (b) obtain for Customer a license to continue using
<br />the EV Cloud Subscription Service, or (c) if neither of the
<br />foregoing is commercially practicable, terminate this Agreement
<br />and Customer’s rights hereunder and provide Customer a refund
<br />of any prepaid, unused fees for the EV Cloud Subscription
<br />Service.
<br />
<br />8. LIMITATION OF LIABILITY
<br />NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY, EXCEPT FOR BODILY INJURY OF A
<br />PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING
<br />BUT NOT LIMITED TO ALL EQUIPMENT AND
<br />TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
<br />REPRESENTATIVES, CONTRACTORS AND EMPLOYEES
<br />SHALL NOT BE RESPONSIBLE OR LIABLE WITH
<br />RESPECT TO ANY SUBJECT MATTER OF THIS
<br />AGREEMENT OR TERMS AND CONDITIONS RELATED
<br />THERETO UNDER ANY CONTRACT, NEGLIGENCE,
<br />STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR
<br />OR INTERRUPTION OF USE OR FOR LOSS OR
<br />INACCURACY OR CORRUPTION OF DATA OR COST OF
<br />PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
<br />TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY
<br />INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
<br />CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER
<br />BEYOND COMPANY’S REASONABLE CONTROL; OR (D)
<br />FOR ANY AMOUNTS THAT, TOGETHER WITH
<br />AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,
<br />EXCEED THE FEES PAID BY CUSTOMER TO COMPANY
<br />FOR THE EV CLOUD SUBSCRIPTION SERVICE UNDER
<br />THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE
<br />ACT THAT GAVE RISE TO THE LIABILITY, IN EACH
<br />CASE, WHETHER OR NOT COMPANY HAS BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />
<br />9. MISCELLANEOUS
<br />If any provision of this Agreement is found to be
<br />unenforceable or invalid, that provision will be limited or
<br />eliminated to the minimum extent necessary so that this
<br />Agreement will otherwise remain in full force and effect and
<br />enforceable. This Agreement is not assignable, transferable or
<br />sublicensable by Customer except with Company’s prior written
<br />consent. Company may transfer and assign any of its rights and
<br />obligations under this Agreement without consent. This
<br />Agreement is the complete and exclusive statement of the mutual
<br />understanding of the parties and supersedes and cancels all
<br />previous written and oral agreements, communications and other
<br />understandings relating to the subject matter of this Agreement,
<br />and that all waivers and modifications must be in a writing
<br />signed by both parties, except as otherwise provided herein. No
<br />agency, partnership, joint venture, or employment is created as a
<br />result of this Agreement and Customer does not have any
<br />authority of any kind to bind Company in any respect
<br />whatsoever. Any disagreements shall be settled by arbitration in
<br />accordance with the rules of JAMS, Inc. In any action or
<br />proceeding to enforce rights under this Agreement, the prevailing
<br />party will be entitled to recover costs and attorneys’ fees. All
<br />notices under this Agreement will be in writing and will be
<br />deemed to have been duly given when received, if personally
<br />delivered; when receipt is electronically confirmed, if transmitted
<br />by facsimile or e-mail; the day after it is sent, if sent for next day
<br />delivery by recognized overnight delivery service; and upon
<br />receipt, if sent by certified or registered mail, return receipt
<br />requested. This Agreement shall be governed by the laws of the
<br />State of California without regard to its conflict of laws
<br />provisions.
<br />Docusign Envelope ID: 17376B40-F266-4EAA-9C62-48006BF43380
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