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Exhibit D
<br />6. INDEMNIFICATION & LIMITATIONS OF LIABILITY.
<br />8.1 Eclipse Corporation shall defend andior settle at its expense, any claims, actions, allegations or proceedings
<br />against You w the extent arising out of or relating to misappropriation or infringement by the Software of any third
<br />party's proprietary or intellectual property right f'Clawns'l, and Eclipse Corporation shall pay all damages finally
<br />awarded by a court of competent jurisdiction to such third party against You, or any settlement amounts agreed
<br />by Eclipse Corporation; subject to the conditions that. You shall notify Eclipse Corporation promptly of any You
<br />Claims, permit Eclipse Corporation tc control the delerse and settlement of such Claims and assist Eclipse
<br />Corporation, at Eclipse Corporabon's expense, in defending or settling such Claims. Eclipse Corporation shall
<br />not be liable for any settlement amounts entered into by You without Eclipse Corporation's prior written approval.
<br />If Eclipse Corporation has reason to believe that r would be subject to an injunction or continuing damages
<br />based on the Software, then Eclipse Corporation may (and if Eclipse Corporation or any of its customers or third
<br />party software suppoers is subject to an injunction or continuing damages based on the Softwares, then
<br />notwithstanding any other provision in this Agreement, Eclipse Corporation shall be entitled to either modify the
<br />Software to make ii non -infringing and or remove the misappropriated material, replace the Software or portion,
<br />thereof with a service or materials that provide substantially the same functionality or information, or, i€ neither of
<br />the foregoing is commercially practicable, require You to cease using the Software and refund to You (a'i a pro
<br />rata porton of any one I 1 ) tirr:e fees abased on a three (3ti year, straight-line depreciation schedule from the date
<br />of payment). and ?b) any fees that have been pre -paid by You but are unused_ The foregoing notwithstanding,
<br />Eclipse Corporation shall have no liability for a claim of infringement or misappropriation to the extent caused by
<br />(i) the combination of the Software with any other service, software, data or products not provided or approved
<br />by Eclipse Corporation. or (III the use of any material provided by You or any end users, fill) any breach by You
<br />of this Agreement. THE FOREGOING 13 ECLIPSE CORPORATION'S SOLE AND EXCLUSIVE LIABILITY. AND
<br />YOUR SOLE AND EXCLUSWE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY
<br />THIRD -PARTY INTELLECTUAL PROPERTY P,IGHTS_
<br />TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ECLIPSE
<br />CORPORATION BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT,
<br />INCIDENTAL, SPECIAL, PUNITIVE. E-EMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER,
<br />INCLUDING WITHOUT LIMITATION, LEGAL EXPENSES. LOSS OF BUSINESS, LOSS OF PROFITS, LOSS
<br />OF REVENUE, LOST OR DAMAGED DATA, LOSS OF COMPUTER TIME. COST OF SUBSTITUTE GOODS
<br />OR SERVICES, OR FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR
<br />ECONOMIC LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ECLIPSE
<br />CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR SUCH
<br />LOSSES OR DAMAGES ARE FORESEEABLE.
<br />6.2 THE ENTIRE LIABILITY OF ECLIPSE CORPORATION AND YOUR EXCLUSIVE REMEDY WITH RESPECT
<br />TO THE SOFTWARE AND TECHNICAL SUPPORT AND ANY OTHER PRODUCTS OR SERVICES SUPPLIED
<br />BY ECLIPSE CORPORATION IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY
<br />CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT,
<br />INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, WILL BE LIMITED IN THE AGGREGATE TO THE
<br />AMOUNTS PAID BY YOU FOR THE SOFTWARE, TECHNICAL SUPPORT OR SERVICES GIVING RISE TO
<br />THE CLAIM.
<br />8.3 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF
<br />LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS .AGREEMENT. YOU ACKNOWLEDGE THAT BUT
<br />FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF
<br />LIABILITY, NEITHER ECLIPSE CORPORATION NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD
<br />GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
<br />7. TERM AND TERMINATION
<br />7.1 The term of this Agreement will begin on download of the Software and, in respect of an Evaluation License,
<br />shall continue for the Evaluation Period, and in respect of all other license types defined in Section 1, shall
<br />continue for as long as 'You use the .Software, unless earner terminated sooner under this section 7.
<br />7.2 Eclipse Corporation may terminate this Agreement in the event of any breach by You if such breach has not
<br />been cured within thirty (30j days of notice to You. No termination of this Agreement will entitle You to a refund
<br />of any amounts paid by You to Eclipse Corporation or its applicable distributor or reseller or affect any obligations
<br />You may have to pay any outstanding amounts owing to Eclipse Corporation or its distributor.
<br />••:;:•. tyler
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