Copyright, Disclaimer, Trademarks and End-User License Agreement
Copyright and Disclaimer
The information in this documentation was prepared by DH2i Company with reasonable care and is believed to be accurate. However, DH2i Company shall not assume responsibility for losses or damages resulting from any omissions, inaccuracies, or errors contained herein. DH2i Company may make improvements or changes in this documentation or in the product and programs described in this documentation, at any time and without notice and as it sees fit. This publication describes the state of this product at the time of its publication, and may not reflect the product at all times in the future.
No part of this documentation may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, by photocopying, recording, or otherwise, without the prior written permission of DH2i Company.
DH2i COMPANY MAKES NO WARRANTY EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THESE MATERIALS AND MAKES SUCH MATERIALS AVALIABLE SOLELY ON AN "AS-IS" BASIS.
IN NO EVENT SHALL DH2i COMPANY BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF PURCHASE OR USE OF THESE MATERIALS.
The End-User License Agreement, which is included with the software program and this manual, specifies the permitted and prohibited uses of the software program.
Please read the terms and conditions of the End-User License Agreement before commencing use of the software program.
© Copyright 2011-2022 DH2i Company. All rights reserved.
InstanceMobility, Smart Availability, DxConnect, DxEnterprise, DxOdyssey, DxAdmin, DxConsole, unVPN, DxMotion, DxHADR, DxTransfer and DH2i logo are registered trademarks of DH2i Company
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End-User License Agreement
IMPORTANT NOTICE TO END-USER. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
DH2i COMPANY AND/OR ITS AFFILIATES ("DH2i") IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANYAND/OR ITS AFFILIATES, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS "YOU" OR "YOUR") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS END-USER SOFTWARE LICENSE AGREEMENT ("AGREEMENT"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND DH2I. BY CLICKING THE "I AGREE" OR "YES" BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE LICENSED SOFTWARE OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE "I DO NOT AGREE" OR "NO" BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO FURTHER USE OF THE LICENSED SOFTWARE. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE "DEFINITIONS" SECTION OF THIS LICENSE AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL, AS THE CONTEXT REQUIRES.
"Content Updates" means content used by certain DH2i products which is updated from time to time, including but not limited to: updated anti-spyware definitions for anti-spyware products; updated antispam rules for antispam products; updated virus definitions for antivirus and crimeware products; updated URL lists for content filtering and antiphishing products; updated firewall rules for firewall products; updated intrusion detection data for intrusion detection products; updated lists of authenticated web pages for website authentication products; updated policy compliance rules for policy compliance products; and updated vulnerability signatures for vulnerability assessment products.
"Documentation" means the user documentation DH2i provides with the Licensed Software.
"License Instrument" means one or more of the following applicable documents which further defines Your license rights to the Licensed Software: a DH2i license certificate, DH2i license key or a similar license document issued by DH2i, or a written agreement between You and DH2i, that accompanies, precedes or follows this License Agreement.
"Licensed Software" means the DH2i software product, in object code form, accompanying this License Agreement, including any Documentation included in, or provided for use with, such software or that accompanies this License Agreement.
"Support Certificate" means the certificate sent by DH2i confirming Your purchase of the applicable DH2i maintenance/support for the Licensed Software.
"Upgrade" means any version of the Licensed Software that has been released to the public and which replaces the prior version of the Licensed Software on DH2i's price list pursuant to DH2i's then-current upgrade policies.
"Use Level" means the license use meter or model (which may include operating system, hardware system, application or machine tier limitations, if applicable) by which DH2i measures, prices and licenses the right to use the Licensed Software, in effect at the time an order is placed for such Licensed Software, as indicated in this License Agreement and the applicable License Instrument.
2. LICENSE GRANT. Subject to Your compliance with the terms and conditions of this License Agreement, DH2i grants to You the following rights: (i) a non-exclusive, non-transferable (except as stated otherwise in Section 16.1) license to use the Licensed Software solely in support of Your internal business operations in the quantities and at the Use Levels described in this License Agreement and the applicable License Instrument(subject to Section 17.2); and (ii) the right to make a single uninstalled copy of the Licensed Software for archival purposes.
2.1 TERM. The term of the Licensed Software license granted under this License Agreement shall be perpetual (subject to Section 14) unless stated otherwise in Section 17 or unless You have obtained the Licensed Software on a non-perpetual basis, such as, under a subscription or term-based license for the period of time indicated on the applicable License Instrument. If You have obtained the Licensed Software on a non-perpetual basis, Your rights to use such Licensed Software shall end on the applicable end date as indicated on the applicable License Instrument and You shall cease use of the Licensed Software as of such applicable end date.
3. LICENSE RESTRICTIONS. You may not, without DH2i's prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Licensed Software except as expressly provided in this License Agreement; (ii) creation of any derivative works based on the Licensed Software; (iii) reverse engineering, disassembly, or decompiling of the Licensed Software (except that You may decompile the Licensed Software for the purposes of interoperability only to the extent permitted by and subject to strict compliance under applicable law); (iv) use of the Licensed Software in connection with service bureau, facility management, timeshare, service provider or like activity whereby You operate or use the Licensed Software for the benefit of a third party; (v) use of the Licensed Software by any party other than You; (vi) use of a later version of the Licensed Software other than the version that accompanies this License Agreement unless You have separately acquired the right to use such later version through a License Instrument or Support Certificate; nor (vii) use of the Licensed Software above the quantity and Use Level that have been licensed to You under this License Agreement or the applicable License Instrument.
4. OWNERSHIP/TITLE. The Licensed Software is the proprietary property of DH2i or its licensors and is protected by copyright law. DH2i and its licensors retain any and all rights, title and interest in and to the Licensed Software, including in all copies, improvements, enhancements, modifications and derivative works of the Licensed Software. Your rights to use the Licensed Software shall be limited to those expressly granted in this License Agreement. All rights not expressly granted to You are retained by DH2i and/or its licensors.
5. CONTENT UPDATES. If You purchase a DH2i maintenance/support offering consisting of or including Content Updates, as indicated on Your Support Certificate, You are granted the right to use, as part of the Licensed Software, such Content Updates as and when they are made generally available to DH2i's end user customers who have purchased such maintenance/support offering and for such period of time as indicated on the face of the applicable Support Certificate. This License Agreement does not otherwise permit You to obtain and use Content Updates.
6. UPGRADES/CROSS-GRADES. DH2i reserves the right to require that any upgrades (if any) of the Licensed Software may only be obtained in a quantity equal to the number indicated on the applicable License Instrument. An upgrade to an existing license shall not be deemed to increase the number of licenses which You are authorized to use. Additionally, if You upgrade a Licensed Software license, or purchase a Licensed Software license listed on the applicable License Instrument to cross-grade an existing license (i.e. to increase its functionality, and/or transfer it to a new operating system, hardware tier or licensing meter), then DH2i issues the applicable Licensed Instrument based on the understanding that You agree to cease using the original license. Any such license upgrade or cross-grade is provided under DH2i's policies in effect at the time of order. This License Agreement does not separately license You for additional licenses beyond those which You have purchased, and which have been authorized by DH2i as indicated on the applicable License Instrument.
7. LIMITED WARRANTY.
7.1. MEDIA WARRANTY. If DH2i provides the Licensed Software to You on tangible media, DH2i warrants that the magnetic media upon which the Licensed Software is recorded will not be defective under normal use, for a period of ninety (90) days from delivery. DH2i will replace any defective media returned to DH2i within the warranty period at no charge to You. The above warranty is inapplicable in the event the Licensed Software media becomes defective due to unauthorized use of the Licensed Software. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR DH2I'S BREACH OF THIS WARRANTY.
7.2. PERFORMANCE WARRANTY. DH2i warrants that the Licensed Software, as delivered by DH2i and when used in accordance with the Documentation, will substantially conform to the Documentation for a period of ninety (90) days from delivery. If the Licensed Software does not comply with this warranty and such non-compliance is reported by You to DH2i within the ninety (90) day warranty period, DH2i will do one of the following, selected at DH2i's sole discretion: either (i) repair the Licensed Software, (ii) replace the Licensed Software with software of substantially the same functionality, or (iii) terminate this License Agreement and refund the relevant license fees paid for such non-compliant Licensed Software. The above warranty specifically excludes defects resulting from accident, abuse, unauthorized repair, modifications or enhancements, or misapplication. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR DH2I'S BREACH OF THIS WARRANTY.
8. WARRANTY DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN SECTIONS 7.1 AND 7.2 ARE YOUR EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. DH2I MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE LICENSED SOFTWARE, CONTENT UPDATES OR UPGRADES WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OR USE OF THE LICENSED SOFTWARE, CONTENT UPDATES, AND UPGRADES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER WARRANTY RIGHTS, WHICH MAY VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL DH2I OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS LICENSE AGREEMENT, EVEN IF DH2I OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL DH2I'S LIABILITY EXCEED THE FEES YOU PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. NOTHING IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT DH2I'S LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER OR NOT YOU ACCEPT THE LICENSED SOFTWARE, CONTENT UPDATES OR UPGRADES.
10. MAINTENANCE/SUPPORT. DH2i has no obligation under this License Agreement to provide maintenance/support for the Licensed Software. Any maintenance/support purchased for the Licensed Software is subject to DH2i's then-current maintenance/support policies.
11. SOFTWARE EVALUATION. If the Licensed Software is provided to You for evaluation purposes and You have an evaluation agreement with DH2i for the Licensed Software, Your rights to evaluate the Licensed Software will be pursuant to the terms of such evaluation agreement. If You do not have an evaluation agreement with DH2i for the Licensed Software and if You are provided the Licensed Software for evaluation purposes, the following terms and conditions shall apply. DH2i grants to You a nonexclusive, temporary, royalty-free, non-assignable license to use the Licensed Software solely for internal non-production evaluation. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Licensed Software or (ii) thirty (30) days from the date of Your initial installation of the Licensed Software, if no such evaluation period is pre-determined in the Licensed Software ("Evaluation Period"). The Licensed Software may not be transferred and is provided "AS IS" without warranty of any kind. You are solely responsible to take appropriate measures to back up Your system and take other measures to prevent any loss of files or data. The Licensed Software may contain an automatic disabling mechanism that prevents its use after a certain period of time. Upon expiration of the Licensed Software Evaluation Period, You will cease use of the Licensed Software and destroy all copies of the Licensed Software. All other terms and conditions of this License Agreement shall otherwise apply to Your evaluation of the Licensed Software as permitted herein.
12. U.S. GOVERNMENT RESTRICTED RIGHTS. If END-USER is a unit of the United States Government, the Software and associated documentation are provided with restricted rights. Use, duplication, or disclosure by the United States Government is subject to the restrictions as set forth in subpart 27-404-2 of the Federal Acquisition Regulations, in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFAR 252.227-7013 and DFAR 252.227-7014 or the restrictions set forth in (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable, or in successor provisions, including the limitations set forth herein. Manufacturer is DH2i Company, 320 East Vine Drive, Fort Collins, Colorado, U.S.A.
13. EXPORT REGULATION. You acknowledge that the Licensed Software and related technical data and services (collectively "Controlled Technology") are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. You agree to comply with all relevant laws and will not to export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All DH2i products, including the Controlled Technology are prohibited for export or re-export to Cuba, North Korea, Iran, Syria and Sudan and to any country subject to relevant trade sanctions. You hereby agree that You will not export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.
14. TERMINATION. This License Agreement shall terminate upon Your breach of any term contained herein. Upon termination, You shall immediately stop using and destroy all copies of the Licensed Software.
15. SURVIVAL. The following provisions of this License Agreement survive termination of this License Agreement: Definitions, License Restrictions and any other restrictions on use of intellectual property, Ownership/Title, Warranty Disclaimers, Limitation of Liability, U.S. Government Restricted Rights, Export Regulation, Survival, and General.
16.1. ASSIGNMENT. You may not assign the rights granted hereunder or this License Agreement, in whole or in part and whether by operation of contract, law or otherwise, without DH2i's prior express written consent.
16.2. COMPLIANCE WITH APPLICABLE LAW. You are solely responsible for Your compliance with, and You agree to comply with, all applicable laws, rules, and regulations in connection with Your use of the Licensed Software.
16.3. AUDIT. An auditor, selected by DH2i and reasonably acceptable to You, may, upon reasonable notice and during normal business hours, but not more often than once each year, inspect Your records and deployment in order to confirm that Your use of the Licensed Software complies with this License Agreement and the applicable License Instrument. DH2i shall bear the costs of any such audit, except where the audit demonstrates that the Manufacturer's Suggested Reseller Price (MSRP) value of Your non-compliant usage exceeds five percent (5%) of the MSRP value of Your compliant deployments. In such case, in addition to purchasing appropriate licenses for any over-deployed Licensed Software, You shall reimburse DH2i for the auditor's reasonable actual fees for such audit.
16.4. GOVERNING LAW; JURISDICTION; SEVERABILITY; WAIVER. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Colorado, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Colorado to the rights and duties of the parties. Any proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought only in the courts of the State of Colorado, County of Larimer, or, if it has or can acquire the necessary jurisdiction, in the United States District Court for the District of Colorado. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such Proceeding and waives any objection to venue laid therein. Process in any proceeding referred to in the preceding sentence may be served on any Party anywhere in the world. If any provision of this License Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this License Agreement shall remain in full force and effect. A waiver of any breach or default under this License Agreement shall not constitute a waiver of any other subsequent breach or default.Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.5. REMEDIES. Except as provided in Sections 7, 8, 9 and 17.4, the parties' rights and remedies under the Agreement are cumulative. Customer acknowledges that the Software contains valuable trade secrets and proprietary information of DH2i, that any actual or threatened breach of Sections 2 and/or 3 will constitute immediate, irreparable harm to DH2i for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its reasonable attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
16.6. THIRD PARTY PROGRAMS. This Licensed Software may contain third party software programs ("Third Party Programs") that are available under open source or free software licenses. This License Agreement does not alter any rights or obligations You may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this License Agreement shall apply to such Third Party Programs.
16.7. CUSTOMER SERVICE. Should You have any questions concerning this License Agreement, or if You desire to contact DH2i for any reason, please write to: (i) DH2i Customer Care, 320 East Vine Drive, Suite 321, Fort Collins, CO 80524, U.S.A
16.8. CONSTRUCTION. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
16.9. PUBLICITY. Upon Customer's written approval in each instance, which may be withdrawn at any time, DH2i may (a) create a general announcement press release indicating that the parties have entered into this Agreement, (b) use Customer's business name and logo in written materials identifying DH2i's customers and in other appropriate promotional materials; (c) identify Customer in applicable case studies; and (d) identify Customer as a reference for prospective customers and the media (provided that Customer shall not be obligated to comment in any way).
16.9. ENTIRE AGREEMENT. This License Agreement and any related License Instrument are the complete and exclusive agreement between You and DH2i relating to the Licensed Software and supersede any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This License Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned. This License Agreement may only be modified by a License Instrument that accompanies or follows this License Agreement.
17. ADDITIONAL TERMS AND CONDITIONS. Your use of the Licensed Software is subject to the terms and conditions below in addition to those stated above.
17.1 ADDITIONAL DEFINITIONS.
A. "Client" or "Device" is defined as a single computer, storage drive or other device (i) on which licensee can install and use the software, (ii) from which licensee accesses and uses the software installed on a network, or (iii) a physical connection point that links together two separate devices.
B. "Server" is defined as an individual computer, acting as a service or resource provider to client computers by sharing the resources within the network infrastructure. The server's processor core count is determined by the number of populated processor cores which are installed on a server, where each processor may include multiple cores. A Server can run server software for other computers or devices.
C. Virtual Machines. For the purposes of this Agreement, a virtual machine is considered the same as a Server.
D. "Disaster" means an unforeseen occurrence causing the operation of the applicable products systems and the Licensed Software installed on such production systems, to be substantially impaired or prevented, which occurrence may include, without limitation, fires, earthquakes, floods and viruses.
17.2 USE LEVELS. The License Software that may be governed by this Agreement is licensed on the following Use Levels:
|DH2i Software||Per Server/Core/CAL|
17.3 PRIVACY; DATA PROTECTION. The Licensed Software may collect the IP address, Product type and version of installed DH2i product, Computer name, Processor/core count, Local time set on computer, Machine ID GUID, domain name, alias and/or hostname of each Server for the Licensed Software. The collected information is stored on Your system and will not be automatically transmitted to DH2i. The collected information will only be transmitted to DH2i if manually sent by You or Your network administrator as part of a technical support request. If transmitted to DH2i, the collected information will be used only for the purpose of fulfilling the corresponding technical support request received by You or Your network administrator. The collected information may be transferred to the DH2i group in the United States or other countries that may have less protective data protection laws than the region in which you are situated (including the European Union), but DH2i has taken steps so that the collected information, if transferred, receives an adequate level of protection. Any collected information will be maintained in a secure manner, and will not be correlated with any other personally identifiable information. DH2i may disclose the collected information if asked to do so by a law enforcement official as required or permitted by law or in response to a subpoena or other legal process.
17.4 INFRINGEMENT CLAIMS.
17.4.1 INDEMNITY. DH2i will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Software infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party or otherwise infringes on the intellectual property rights of a third party, and DH2i will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying DH2i promptly in writing of such action, (b) giving DH2i sole control of the defense thereof and any related settlement negotiations, and (c) reasonably cooperating and, at DH2i's request and expense, assisting in such defense; provided, that any such settlement by DH2i shall not entail an admission or finding of liability or fault on the part of Customer. DH2I shall have the exclusive right to defend any such action, suit or proceeding and make settlements thereof at its own discretion, and Customer may not settle or compromise such action, suit or proceeding, except with the prior written consent of DH2i.
17.4.2. INJUNCTION. If the Software becomes, or in DH2i's opinion is likely to become, the subject of an infringement claim, DH2i may, at its option and expense, either (a) procure for Customer the right to continue using the Software, (b) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent, or (c) accept return of the Software, terminate this Agreement upon written notice to Customer and refund Customer the Software and Software Support Fees paid for such Software and related support upon such termination, computed according to a twelve (12) month straight-line amortization schedule beginning on the Effective Date.
17.4.3 EXCLUSIONS. Notwithstanding the foregoing, DH2i will have no obligation under this Section 7 or otherwise with respect to any infringement claim based upon (a) any use of the Software not in accordance with this Agreement or the Documentation, (b) any use of the Software in combination with other products, hardware, equipment, software, or data not authorized by DH2i to be used with the Software, (c) any use of any release of the Software other than the most current release made available to Customer, or (d) any modification of the Software by any person other than DH2i or its authorized agents or subcontractors. Customer shall indemnify and hold harmless DH2i from and against any action, suit or proceeding for infringement and/or misappropriation that arises or results from any of the exclusions set forth in Section 17.4.3 above. The foregoing obligations are conditioned on DH2i (a) notifying Customer promptly in writing of such action, (b) giving Customer sole control of the defense thereof and any related settlement negotiations, and (c) reasonably cooperating and, at Customer's request and expense, assisting in such defense; provided, that any such settlement by Customer shall not entail an admission or finding of liability or fault on the part of DH2i. Customer shall have the exclusive right to defend any such action, suit or proceeding and make settlements thereof at its own discretion, and DH2i may not settle or compromise such action, suit or proceeding, except with the prior written consent of Customer.
17.4.4 SECTION 17.4 STATES THE ENTIRE LIABILITY OF THE PARTIES, AND THEIR EXCLUSIVE REMEDIES FOR INFRINGEMENT CLAIMS AND ACTIONS.