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AG 2016 09 19
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AG 2016 09 19
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Last modified
9/20/2016 11:20:23 AM
Creation date
11/27/2017 10:34:58 AM
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Meeting Minutes
Doc Type
Agenda
Meeting Minutes - Date
9/19/2016
Board
Board of Commissioners
Meeting Type
Regular
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Party that it approves the plan. If Customer is the defaulting Party, Motorola may stop work on the project <br />until it approves the Customer's cure plan. If the non - performing Party fails to cure the default, the <br />performing Party may terminate any unfulfilled portion of this Agreement and recover damages as <br />permitted by law and this Agreement. <br />Section 12 PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION <br />12.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on <br />a third -party claim alleging that the Equipment manufactured by Motorola or the Motorola Software <br />( "Motorola Product ") directly infringes a United States patent or copyright ( "Infringement Claim "). <br />Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in <br />writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all <br />negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if <br />requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to <br />Motorola's obligation to defend, and subject to the same conditions, Motorola will pay all damages finally <br />awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in <br />writing, by Motorola in settlement of an Infringement Claim. <br />12.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its <br />option and expense: (a) procure for Customer the right to continue using the Motorola Product; (b) <br />replace or modify the Motorola Product so that it becomes non - infringing while providing functionally <br />equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for <br />the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be <br />calculated based upon generally accepted accounting standards. <br />12.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: <br />(a) the combination of the Motorola Product with any software, apparatus or device not furnished by <br />Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to <br />or used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in <br />accordance with Customer's designs, specifications, guidelines or instructions, if the alleged infringement <br />would not have occurred without such designs, specifications, guidelines or instructions; (d) a <br />modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a <br />manner for which the Motorola Product was not designed or that is inconsistent with the terms of this <br />Agreement; or (f) the failure by Customer to install an enhancement release to the Motorola Software that <br />is intended to correct the claimed infringement. In no event will Motorola's liability resulting from its <br />indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the <br />Customer's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived <br />by Motorola from Customer from sales or license of the infringing Motorola Product. <br />12.4. This Section 12 provides Customer's sole and exclusive remedies and Motorola's entire liability in <br />the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to <br />provide any other or further remedies, whether under another provision of this Agreement or any other <br />legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies <br />provided in this Section 12 are subject to and limited by the restrictions set forth in Section 13. <br />Section 13 LIMITATION OF LIABILITY <br />Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, <br />negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages <br />recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to <br />which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY <br />OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY <br />COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, <br />PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL <br />DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE <br />OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA <br />Motorola Apttus /Contract No. Page 6 v. 8 -16 -2016 <br />Attachment number 3 \n <br />F -11 Page 135 <br />
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