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sent; (iv) export the Software or any of its underlying technology in
contravention of U.S. and foreign export laws and regulations, or (v)
if Products are included, use the Software other than in connection
with the System.
3. USE
The right to use the Software, or any individual feature thereof, may
be restricted by a measure of usage. An expansion beyond a commer-
cially reasonable usage level may require payment of an additional fee
to ARRIS.
4. SOFTWARE DEVELOPED AT PRIVATE EXPENSE
The Software provided under this Agreement is commercial computer
software developed exclusively at private expense, and in all respects
are proprietary data belonging solely to ARRIS and/or it licensors.
5. LIMITATIONS ON LIABILITY
NEITHER ARRIS NOR ITS LICENSORS SHALL BE LIABLE FOR INDI-
RECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR
SPECIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER AL-
LEGED AS A BREACH OF CONTRACT, TORT (INCLUDING NEGLI-
GENCE), STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF
WHETHER YOU, ANY OTHER SOFTWARE USER, OR ANY THIRD PARTY
SUFFERED SUCH DAMAGES, EVEN IF ARRIS AND/OR ITS LICENSORS
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT WILL ARRIS’ TOTAL LIABILITY TO YOU OR ANY THIRD PARTY
ARISING OUT OF OR PURSUANT TO THIS AGREEMENT EXCEED THE
AMOUNT PAID BY PURCHASER TO ARRIS FOR THE SOFTWARE AND/
OR SYSTEM.
6. TERM & TERMINATION
This Agreement takes effect upon Your acceptance of the terms hereof
or Your first use of the Software and will remain in force until termi-
nated in accordance hereunder. ARRIS may terminate this Agreement
upon fifteen (15) days prior written notice upon Your material breach
of this Agreement if such breach is not cured within such fifteen (15)
day period. Notwithstanding the foregoing, this Agreement shall ter-
minate immediately upon Your breach of any of the provisions of Sec-
tion 2 above.
7. OWNERSHIP
Title, ownership rights, and all intellectual property rights in and to the
Software and/or System and any accompanying materials or docu-
mentation, and any copy of the foregoing, shall remain the sole and
exclusive property of ARRIS and/or its licensors. You agree to abide by
copyright laws and all other applicable laws, and acknowledge that the
Software contains valuable confidential information and trade secrets
of ARRIS and/or its licensors.
8. YOUR INDEMNIFICATION TO ARRIS
You agree to defend, indemnify and hold ARRIS harmless from and
against any costs, losses, liabilities and expenses (including attorney’s
fees) arising out of or relating to third party claims arising out of or
related to Your use of the Software and/or System in contravention to
the terms of this Agreement, including without limitation, any and all
claims, actions, suits, or proceedings alleging fraud, breach of security,
non-compliance with laws, breach of contract or negligence.
9. PATENT INDEMNIFICATION
9.1 ARRIS will indemnify, defend and hold You harmless against dam-
ages, liabilities and costs, excluding consequential and exemplary
damages finally awarded against You and will, at ARRIS’ expense, de-
fend any claim, suit or proceeding ("Claim") brought against You inso-
far as such Claim is based on an allegation that the Products as
provided to You directly infringe a United States patent or copyright.
ARRIS will pay those costs and damages, including settlement costs
awarded or agreed-upon, as applicable, as the result of the Claim, pro-
vided (i) You promptly notify ARRIS of the Claim (ii) You give ARRIS all
applicable evidence in Your possession, custody or control, (iii) You
give ARRIS reasonable assistance in and sole control of the defense
and all negotiations for its settlement or compromise, and (iv) You
have paid all fees due to ARRIS under this Agreement and continue to
pay all such fees as such become due.
