(2) PROPRIETARY RIGHTS/DATA
All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the products, including any documentation, shall belong solely and exclusively to Innovolt or the applicable suppliers
or licensors, and you shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. You may not reverse engineer, modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale
of, create derivative works from, or in any way exploit any of the Products or Software, in whole or in part. In connection with product, Innovolt will obtain, receive, or collect data or information from the product, relating to the electrical power to the facility and/
or related appliance where the products are located (collectively, the “Data”). Innovolt will own such Data, and, upon Customer’s written request, will provide to Customer a limited, non-exclusive, royalty-free, license to use and process the Data at its location.
In addition, Innovolt may aggregate and use the Data in support of Innovolt’s marketing and sales activities.
(3) LIMITATION OF LIABILITY
INNOVOLT WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS PROVIDED HEREUNDER. NEITHER PARTY SHALL HAVE LIABILITY FOR
THE FOLLOWING: (1) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (2) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (3) LOSS OF BUSINESS OPPORTUNITY; (4) BUSINESS
INTERRUPTION OR DOWNTIME; OR (5) INNOVOLT PRODUCTS NOT BEING AVAILABLE FOR USE. INNOVOLT’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL
AMOUNT PAID BY CUSTOMER DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT GIVING RISE TO SUCH CLAIM(S). THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES,
WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION
FOR INNOVOLT’S SALE OF PRODUCTS, OR SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LIABILITIES.
(4) OTHER IMPORTANT TERMS
a. Indemnification.
Innovolt shall defend and indemnify you against any third-party claim or action that the Products or Software delivered pursuant to this Agreement infringe or misappropriate that third party’s U.S. patent, copyright, trade secret, or other
intellectual property rights (“Indemnified Claims”). In addition, if Innovolt receives prompt notice of an Indemnified Claim that, in Innovolt’s reasonable opinion, is likely to result in an adverse ruling, then Innovolt shall at its option, (1) obtain a right for you to
continue using such Products or Software; (2) modify such Products or Software to make them non-infringing; (3) replace such Products or Software with a non-infringing equivalent; or (4) or provide a reasonable depreciated or pro rata refund for the allegedly
infringing Product or Software. Notwithstanding the foregoing, Innovolt shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Products or Software that were not performed by or on behalf of Innovolt; (2)
the combination, operation, or use of the Products or Software in connection with a third-party product, software, or service (the combination of which causes the claimed infringement); or (3) Innovolt’s compliance with your written specifications or directions,
including the incorporation of any materials or processes provided by or requested by you. Innovolt’s duty to indemnify and defend under this Section is contingent upon: (x) Innovolt receiving prompt written notice of the third-party claim or action for
which Innovolt must indemnify Customer, (y) Innovolt having the right to solely control the defense and resolution of such claim or action, and (z) your cooperation with Innovolt in defending and resolving such claim or action. This Section states Customer’s
exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Innovolt to provide any greater indemnity to Customer. ALL OTHER INDEMNITIES ARE DISCLAIMED. You shall defend and
indemnify Innovolt against any third-party claim or action arising out of your breach of Innovolt’s proprietary rights as stated in this Agreement. Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily
injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
b. U.S. Government Restricted Rights.
The documentation provided with the Products and Software are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software
documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the documentation with only those rights set forth herein.
c. Governing Law.
This Agreement and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS)
BETWEEN CUSTOMER AND INNOVOLT, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity
thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Innovolt’s advertising, or any related purchase (a “Dispute”) shall
be governed by the laws of the State of Georgia, without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
d. Venue.
The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in Fulton County, Georgia. Customer and Innovolt agree to submit to the personal jurisdiction of the state and federal courts located within Fulton
County, Georgia, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect
to any Dispute.
e. Limitation Period.
INNOVOLT Shall be liable for any claim brought more than One year after the cause of action for such claim first arose.
f. Dispute Resolution.
Customer and Innovolt will attempt to resolve any Dispute through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation.
The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in Fulton County a temporary restraining order, preliminary injunction, or
other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in
accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.
