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ARTICLE B.4—LIMITATION OF LIABILITY
<br /> B.4.1 Disclaimer of Liability. Neither Customer, Esri, nor any Esri distributor or third party licensor will be
<br /> liable for any indirect,special, incidental,or consequential damages; lost profits; lost sales; loss of
<br /> goodwill; costs of procurement of substitute goods or services; or damages exceeding the applicable
<br /> license fees, or current subscription fees,or Services fees paid or owed to Esri for the Esri Offerings or
<br /> Services giving rise to the cause of action.
<br /> B.4.2 The limitations and exclusions of liability in the preceding paragraph do not apply to Customer's
<br /> infringement, misuse, or misappropriation of Esri's or Esri's licensors' intellectual property rights, either party's
<br /> indemnification obligations, gross negligence, willful misconduct, or violations of the Export Compliance clause of
<br /> this Agreement or any applicable law or regulation.
<br /> B.4.3 Applicability of Disclaimers and Limitations. Esri or its authorized distributor has set its fees and entered
<br /> into this Agreement in reliance on the disclaimers and limitations in this Agreement; the fees reflect an allocation
<br /> of risk that is an essential basis of the bargain between the parties. These limitations will apply whether or not
<br /> a party is aware of the possibility of any damage and notwithstanding any failure of essential purpose of
<br /> any exclusive, limited remedy.
<br /> B.4.4 The foregoing disclaimers, limitations, and exclusions may be invalid in some jurisdictions and apply only to
<br /> the extent permitted by applicable law or regulation in Customer's jurisdiction. Customer may have additional
<br /> rights that may not be waived or disclaimed. Esri does not seek to limit Customer's warranty or remedies to any
<br /> extent not permitted by law.
<br /> ARTICLE B.5—INDEMNIFICATIONS
<br /> B.5.1 Definitions.The following definitions supplement the definitions provided in Attachment A:
<br /> a. "Claim" means any claim, action, or demand by a third party.
<br /> b. "Indemnitees" means Customer and its directors, officers, and employees.
<br /> c. "Infringement Claim(s)" means any Claim alleging that Customer's use of or access to any Esri Offering or
<br /> Service infringes a patent, copyright, trademark, or trade secret.
<br /> d. "Loss(es)"means expenditure, damage award, settlement amount, cost, or expense, including awarded
<br /> attorneys'fees.
<br /> B.5.2 Infringement Indemnity.
<br /> a. Esri will defend, hold all Indemnitees harmless from, and indemnify any Loss arising out of an Infringement
<br /> Claim.
<br /> b. If Esri determines that an Infringement Claim is valid, Esri may, at its expense, either(i) obtain rights for
<br /> Customer to continue using the Esri Offerings or Services or(ii) modify the Esri Offerings or Services while
<br /> maintaining substantially similar functionality. If neither alternative is commercially reasonable, Esri may
<br /> terminate Customer's right to use the Esri Offerings or Services and will refund any (a) license fees that
<br /> Customer paid for the infringing Esri Offerings or Services acquired under a Perpetual License, prorated on a
<br /> 5-year, straight-line depreciation basis beginning from the initial date of delivery or(b) unused portion of fees
<br /> paid for Term Licenses, Subscriptions, and Maintenance.
<br /> c. Esri has no obligation to defend an Infringement Claim or to indemnify Customer to the extent the
<br /> Infringement Claim arises out of(i)the combination or integration of Esri Offerings or Services with a product,
<br /> process, system, or element that Esri has not supplied or specified in the Specification; (ii) alteration of Esri
<br /> Offerings or Services by anyone other than Esri or its subcontractors; (iii)compliance with Customer's
<br /> specifications; or(iv) use of Esri Offerings or Services after Esri either provides a modified version to avoid
<br /> infringement or terminates Customer's right to use the Esri Offerings or Services.
<br /> B.5.3 General Indemnity. Esri will defend and hold all Indemnitees harmless from, and indemnify any Loss
<br /> arising out of, any Claim for bodily injury, death, or tangible or real property damage brought against any of the
<br /> Indemnitees to the extent arising from any negligent act or omission or willful misconduct by Esri or its directors,
<br /> officers, employees, or agents performing Services while on Customer's site.
<br /> E204S—02/19/2020 Page 12 of 17 09/09/2020/PSK
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