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Agreement as necessary or useful to perform the Seruices. Except as expressly set forth in
<br />this Arlicle 7, Client retains all right, title and interest in and to any client materials, including
<br />all Client pre-existing lntellectual Property Rjghts.
<br />8. Limited Warranties and Disclaimer
<br />8.1 Limited Warranty. Wlh respect to each Deliverable, Company warrants to Client lhat,
<br />for a period of 90 calendar days after the date of delivery of such Deliverable to Client
<br />("Deliverable Wananty Period"), such Deliverable will substantially conlorm to any applicabte
<br />functional specifications for such Deliverable that are described in the applicable Service
<br />Specs or any Change Order thereto. lf any Deliverable does not perform as expressly
<br />warranted in this Section 8.1, Client will notify Company in writing and Company will, at its
<br />sole option and expense: (a) replace or modify such Deliverable with a Deliverable that
<br />perfonns as expressly warranted in this Section 8.1; or (b) if Company determines that the
<br />foregoing is not commercially reasonable, accept return of such Deliverable (if applicable)
<br />and refund to Client the Fees paid by Client associated wilh such Deliverable under this
<br />Agreement. The foregoing limited warranty does not cover repair or replacement of or
<br />refunds for any Deliverable if the nonconformity to such limited waranty is caused, in whole
<br />or in part, by; (i) alteration, moditicalion or correction other than by Company; (ii) soitware,
<br />hardware or interfacing not provided or specified in the applicable Service Specs by
<br />Companyi (iii) abuse, misuse or improper installat:on; or (iv) a change to Clienfs computing
<br />environmenl that would affect the specific Deliverable. THE FOREGOING PROVISTONS OF
<br />THIS SECTION 8.1 STATE THE ENTIRE LIABILITYAND OBLIGATIONS OF COMPANY
<br />AND THE EXCLUSIVE REMEDY OF CLIENT, VMTH RESPECT TO ANY BREACH OF THE
<br />LIMITED WARRANTY IN THIS SECTION 8.1.
<br />8.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH tN SECTTON 8.1,
<br />COMPANY DOES NOT MAKEANY OTHER REPRESENTATIONS, WARRANTIES OR
<br />CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS.
<br />IMPLIED, OR ARISING BY STATUTF, CUSTOM, COURSE OF DEALING OR TRADE
<br />USAGE, WTH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, IN
<br />CONNECTION WTH THIS AGREEMENI COMPANY SPECIFICALLY DISCLAIMS ANY
<br />AND ALL Ii\4PLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY FITNESS
<br />FOR A PARTICULAR PURPOSE, AND NON-INFRINGEIV]ENT. COMPANY DOES NOT
<br />WARRANT THAT THE DELIVERABLES OR ANY SERVICES PROVIDED UNDER THIS
<br />AGREEMENT WLL MEET CLIENT'S REQUIREMENTS, THAT THE OPERATION OF THE
<br />DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN
<br />THE DELIVERABLES WLL BE CORRECTED.
<br />9. Limitation of Liability
<br />EXCEPT FOR ANY BREACH OF ARTICLE 6 OR SECTION 7.2(b), IN NO EVENT WLL
<br />EITHER PARTY BE LIABLE FOR ANY INDIRECI SPECIAL, INCIDENTAL,
<br />CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR COSTS OF
<br />PRQCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR
<br />RELATED TO THISAGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR
<br />LOST DATA, REVENUE OR PROFITS, HOWEVER CAUSED AND ARISING UNDER ANY
<br />THEORY OF LIABILITY INCLUDING BUT NOT LIMITED TO CONTMCT OR TORT
<br />(INCLUDING PRODUCTS LIABILITY, STRICT LIABILITYAND NEGLIGENCE), AND
<br />WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED
<br />OF THE POSSIBILITY OF SUCH DAMAGE, IN NO EVENT SHALL COMPANY'S
<br />AGGREGATE LIABILITYARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED
<br />THE NET AMOUNT COMPANY HAS ACTUALLY RECEIVED FROM CLIENT UNDER THE
<br />SERVICE SPECS APPLICABLE TO SUCH CLAIM.
<br />10.1 lndependent Contractors. The relationship of the parties under this Agreement is that
<br />of independent contractors. Neither party will be deemed to be an employee, agent, partner,
<br />franchisor, franchisee nor legal representative of the other for any purpose and neither will
<br />have any right, power or authority to create any obligation or responsibility on behalf of the
<br />other.
<br />10.2 Export Control. Client agrees not to export, or re-expo.t, or €use to be re-exported,
<br />any Company materials or portion thereof, to any country which, under the laws of the United
<br />States, Client is or might be prohibited from expotting its technology.
<br />1 0.3 Non.Solicitation. Client acknowledges and agrees that the employees of Company
<br />who perform the Services are a valuable asset to Company and are difficult to replace.
<br />Accordingly, during the term of this Agreement and for a period of one (1 ) year thereafler,
<br />Client shall not solicit, whether directly or indirectly, the entployment of any Company
<br />employees without the prior written consent of Company. lf Client violates this Section 10.3,
<br />the parties agree lhat Client shall pay to Company the sum of one hundred thousand dollars
<br />($1 00,000) as liquidated damages. The parties further agree that precise monetary damages
<br />for Client's violation of this Section 1 0.3 would be difficult to ascertain and that the foregoing
<br />sum represents a lair and conseruative approximation of cost of recruitment, hiring and
<br />training that would be incurred by Company.
<br />10.4 lndependent Development. Noth;ng in this Agreement (including, without limitation, the
<br />receipt of information under this Agreement) shall: (a) limit Company's development,
<br />marketing or distribution of software or other technology involving any functionality or ideas,
<br />whether similar to those disclosed by Client or otherwise; (b) limit Company from undertaking
<br />similar efforts or discussions with third parties who may compete with Client; or (c) create
<br />obligations binding in any way on Company limiting or restricting the assignments, activities,
<br />or training of employees or contractors of Company.
<br />10.5 Subcontractors. Company may, in its sole discretion, use third party contractors to
<br />fulfil: its obligations under this Agreement.
<br />10.6 Notices, Any notice, other than a Change Order, required or permitled under the terms
<br />of this Agreement or required by law must be in writing and must be delive.ed (a) in person,
<br />(b) by fi.st class registered mail, or air mall, as appropriate, posted and iully prepaid to the
<br />appropriate address set forth in the preamble to this Agreement, or (c) via facsimite. Notices
<br />will be considered to have been given at the time of actual delivery in person, four (4)
<br />business days after deposit in the mail as set forth above, or upon receipt of facsimile
<br />conlirmation. Either party may change ils address for notice by notice to lhe other party given
<br />in accordance with this Section.
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