Dell SMA 200 Administration Manual page 507

13 Infringement Indemnity. Dell shall indemnify Customer from and against any claim, suit, action, or
proceeding brought against Customer by a third-party to the extent it is based on an allegation that the
Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in
the country in which the Software is delivered to Customer, or misappropriates a trade secret in such
country (a "Claim"). Indemnification for a Claim shall consist of the following: Dell shall (a) defend or
settle the Claim at its own expense, (b).pay any judgments finally awarded against Customer under a
Claim or any amounts assessed against Customer in any settlements of a Claim, and (c) reimburse
Customer for the reasonable administrative costs or expenses, including without limitation reasonable
attorneys' fees, it necessarily incurs in responding to the Claim. Dell's obligations under this
Infringement Indemnity Section are conditioned upon Customer (i) giving prompt written notice of the
Claim to Dell, (ii) permitting Dell to retain sole control of the investigation, defense or settlement of the
Claim, and (iii) providing Dell with such cooperation and assistance as Dell may reasonably request from
time to time in connection with the investigation, defense or settlement of the Claim. Dell shall have no
obligation hereunder to defend Customer against any Claim (a) resulting from use of the Software other
than as authorized in this Agreement, (b) resulting from a modification of the Software other than by
Dell, (c) based on Customer's use of the Software after Dell recommends discontinuation because of
possible or actual infringement, (d) based on Customer's use of a superseded or altered release of
Software if the infringement would have been avoided by use of a current or unaltered release of the
Software made available to Customer, or (e) to the extent the Claim arises from or is based on the use of
the Software with other products, services, or data not supplied by Dell if the infringement would not
have occurred but for such use. If Customer's use of the Software is enjoined as a result of a Claim, Dell
shall, at its expense and option either (1) obtain for Customer the right to continue using the enjoined
Software, (2) replace the enjoined Software with a functionally equivalent non-infringing product, (3)
modify the enjoined Software so that it is non-infringing, or (4) terminate the License for the enjoined
Software and (A) for On-Premise Software, accept the return of the enjoined Software and refund the
license fee paid for such Software, pro-rated over a sixty (60) month period from the date of initial
delivery of the Software following an Order, or (B) for SaaS Software, discontinue Customer's right to
access and use the enjoined Software and refund the unused pro-rated portion of any license fees pre-
paid by Customer for such Software. This Section states Dell's entire liability and its sole and exclusive
indemnification obligations with respect to a Claim.
14 Limitation of Liability. EXCEPT FOR (A) ANY BREACH OF THE RESTRICTIONS OR CONFIDENTIAL
INFORMATION SECTIONS OF THIS AGREEMENT, (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS
WHICH DELL IS LIABLE TO PAY ON BEHALF OF CUSTOMER UNDER THE INFRINGEMENT INDEMNITY SECTION
OF THIS AGREEMENT AND CUSTOMER IS LIABLE TO PAY ON BEHALF OF OR TO DELL UNDER THE CONDUCT,
EXPORT, MSP LICENSE, AND USE BY SERVICE PROVIDERS SECTIONS OF THIS AGREEMENT, OR (C) ANY
LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE
LAW, IN NO EVENT SHALL CUSTOMER OR ITS AFFILIATES OR DELL, ITS AFFILIATES OR SUPPLIERS BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING
BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS,
LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF,
DAMAGE TO OR CORRUPTION OF DATA, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS
FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE.
EXCEPT FOR (A) ANY BREACH OF THE SOFTWARE LICENSE, RESTRICTIONS, OR CONFIDENTIAL
INFORMATION SECTIONS OF THIS AGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS; (B) DELL'S EXPRESS OBLIGATIONS UNDER THE INFRINGEMENT
INDEMNITY SECTION OF THIS AGREEMENT AND CUSTOMER'S EXPRESS OBLIGATIONS UNDER THE CONDUCT,
EXPORT, MSP LICENSE, AND USE BY SERVICE PROVIDERS SECTIONS OF THIS AGREEMENT, (C) DELL'S COSTS
OF COLLECTING DELINQUENT AMOUNTS WHICH ARE NOT THE SUBJECT OF A GOOD FAITH DISPUTE; (D) A
PREVAILING PARTY'S LEGAL FEES PURSUANT TO THE LEGAL FEES SECTION OF THIS AGREEMENT; OR (E)
ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE
LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF CUSTOMER AND ITS AFFILIATES AND
DELL, ITS AFFILIATES AND SUPPLIERS, UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT
EXCEED (Y) THE GREATER OF THE FEES PAID AND/OR OWED (AS APPLICABLE) BY CUSTOMER OR ITS
AFFILIATES FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE BREACH OR FIVE HUNDRED DOLLARS
($500.00), OR (Z) FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE
GREATER OF THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR
PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE BREACH OR FIVE HUNDRED DOLLARS
($500.00). THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK
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