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<Read Me First>
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4.4 The above warranties shall not be applied to and Yokogawa shall not be liable for the defect
or noncompliance which is subject to any of the following circumstances:
a) the hardware on which the Software Product is installed has ceased to be covered by the
warranty or maintenance contract of the hardware supplier;
b) if the hardware on which the Software Product needs to run is specified, such hardware
has been changed to other hardware without consent of Yokogawa;
c) modification, improvement or alteration is made by a person other than Yokogawa or its
designated service provider;
d) your or third party’s (excluding the service provider designated by Yokogawa) misuse,
alteration, addition of new function, or use for any purpose not provided in the functional
specifications of Yokogawa;
e) the appropriate environmental or other conditions provided by Yokogawa or hardware
supplier is not complied with;
f) the corrective action (including repair, replacement or workaround) for the defect or non-
compliance is not implemented as suggested by Yokogawa; or
g) any other causes which are not deemed attributable to Yokogawa.
4.5 Notwithstanding the foregoing, any warranty for the Third Party Software and/or OSS is
subject to the special terms and conditions separately provided with respect to such Third
Party Software and/or OSS.
4.6 THE ABOVE WARRANTY IS GIVEN AND ACCEPTED AS A SOLE AND EXCLUSIVE
LIABILITY AND IN LIEU OF ALL OTHER LIABILITY OR WARRANTIES OF ANY KIND
WHATSOEVER ON THE PART OF YOKOGAWA OR SUPPLIER, EXPRESS OR IMPLIED,
IN FACT OR IN LAW. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. The warranty
provisions of the applicable law are expressly excluded to the extent permitted.
5. Maintenance Services
5.1 Scope and terms and conditions of maintenance service for the Software Product shall
be subject to the latest Yokogawa standard terms and conditions of service or otherwise
defined by Yokogawa. As for the Customized Software Product, basically, Yokogawa will
not provide maintenance service after the Warranty Period, provided that Yokogawa may
provide alteration work subject to individual written agreement.
5.2 Notwithstanding otherwise stated in the preceding sub-clause, any maintenance service
for the Third Party Software shall be subject to the terms and conditions provided by the
Supplier.
6. Infringement
6.1 If Licensee is warned or receives a claim by a third party that the Software Product in its
original form infringes any third party’s patent (which is issued at the time of delivery of
the Software Product), trade mark, copyright or other intellectual property rights (”Claim”),
Licensee shall promptly notify Yokogawa thereof in writing.
6.2 If the infringement is attributable to Yokogawa, Yokogawa will defend Licensee from the
Claim at Yokogawa’s expense and indemnify Licensee from the damages finally granted
by the court or otherwise settled by Yokogawa out of court. The foregoing obligation and
indemnity of Yokogawa shall be subject to i) Licensee promptly notifying Yokogawa of the
Claim in writing as provided above, ii) Licensee granting to Yokogawa and its designees the
full authority to control the defense and settlement of such Claim and iii) Licensee to give
every and all necessary information and assistance to Yokogawa upon Yokogawa’s request.
6.3 If Yokogawa believes that a Claim may be made or threatened, Yokogawa may, at its
option and its expense, either a) procure for Licensee the right to continue using the
Software Product, b) replace the Software Product with other software product to prevent
infringement, c) modify the Software Product, in whole or in part, so that it becomes non-
infringing, or d) if Yokogawa believes that a) through c) are not practicable, refund Licensee
the amount of the book value of the Software Product as depreciated.
