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<br />indemnity does not extend to any claim, suit or proceeding based upon any
<br />infringement or alleged infringement of copyright by the combination of the
<br />Software with other elements not under CSS's sole control nor does it extend
<br />to any Software altered by Customer either by enhancement or by
<br />combination with product(s) of the Custome(s design or formula. The
<br />foregoing states the entire liability of CSS for proprietary and intellectual
<br />proprietary rights infringement related to the Software. If the Software in any
<br />claim, suit or proceeding is held to infringe any proprietary or intellectual
<br />property rights of any third party and the use thereof is enjoined or, in the case
<br />of settlement as referred to above, prohibited, CSS shall have the option, at its
<br />own expense, to either (i) obtain for Customer the right to continue using the
<br />infringing item, or (ii) replace the infringing item or modify it so that it becomes
<br />non-infringing; provided that no such replacement or modification shall
<br />diminish the performance of the Software.
<br />
<br />12.3 Notices - Customer shall not obliterate, alter or remove any proprietary
<br />or intellectual property notices from the Software and to the extent this
<br />Agreement permits Customer to make copies of the Software, Customer shall
<br />reproduce such notices as they appear on the Software.
<br />
<br />12.4 Archive Copies - Customer shall be entitled to copy the Software and
<br />Releases for archive purposes, but only if Customer first ensures that all
<br />copies it makes of the Software under this "Seeton include screen displays of
<br />CSS's proprietary or intellectual property notices as recorded on the original
<br />copy provided by CSS, and Customer shall affix a label to each disk, reel or
<br />other housing for the medium on which each copy is recorded setting out the
<br />same proprietary or intellectual property notices as such appear on the unit of
<br />Software from which the copy is made in the same manner.
<br />
<br />13. WARRANTY
<br />13.1 Limited Warranty of Versions and Releases - CSS warrants that each
<br />Version or Release supplied hereunder shall perform in accordance with the
<br />functional specifications as set out in the documentation to such Version or
<br />Release provided for 30 days following installation and use thereof. CSS's
<br />sole obligation and liability hereunder shall be to use reasonable efforts to
<br />remedy any such funetonal non-{;onformance which is reported to CSS in
<br />writing by Customer within the warranty period. In the event such non-
<br />conformance is unable to be remedied by CSS, using reasonable efforts, CSS
<br />shall, in its sole discretion, refund to Customer the charges and payments
<br />associated with the provision of the Version or Release to the Customer and
<br />use reasonable efforts to find a replacement and this Agreement will be
<br />automatically terminated,
<br />
<br />13.2 Limited Warranty of Services - CSS warrants that all services shall be
<br />performed in full conformity with the Agreement, with the skill and care which
<br />would be exercised by those who perform similar services at the time the
<br />services are performed, and in accordance with accepted industry practice. In
<br />the event of a breach of the express warranties contained herein and/or in the
<br />event of non-performance and/or failure of CSS to perform the services in
<br />accordance with the Agreement, CSS shall, at no cost to Customer, re-perform
<br />or perform the services so that the services conform to the warranties.
<br />
<br />13,3 SPEC'FIC EXCLUSIO~ OF OTHER WAARANTIES. THE WARRANTIES SET OUT IN SECTION 13.1
<br />ANO 13.2 ARE IN LIEU OF ALL OTHER WAARANTIES, AND THERE ARE NO OTHER WARRANTIES,
<br />REPRESENTATIONS. CONDITIONS, OR GUARANTEES OR ANY KIND WHATSOEVER, EiTHER EXPRESS OR
<br />IMPLIED BY LAW (in contract or tori) CR CUSTOM. INClUDING, BUT NOT LIMITED TO THOSE REGARD'NG
<br />MERCHANTABILITY, FITNESS FOR PURPOSE. CORRESPONDENCE ,0 SAMPlE TITLE, DESIGN,
<br />CONDITION, OR QUALITY. WITHOUT LIMITING THE ABOVE. CSSDOES NOT WA'1IV\NTTHAT7-iE
<br />RELEASES SHALL MEET TCiE REQUIREMENT OF CUSTOMER OR THAT THE OPERATION CF RELEASES
<br />SHALL BE FREE "ROM INTERRUPTION OR ERRORS,
<br />
<br />13.4 RESTRICTIO~S ON WAARANTY. CSS SHAlL HAVE NO OBLIGATION TO REPAIR OR REPlACE
<br />RELEASES DAMAGED BY ACCIDENT OR OTHER EXTERNAL CAUSE, OR THROUGH T;,E FAULT OR
<br />NEGLIGENCE OF ANv PAATY OTHER THAN CSS,
<br />
<br />135 NO INDIRECT DAMAGES .IN NO EVENT SHALL CSS BE LIABLE TO CUSTOMER OR TO ANY OTHER
<br />PARTY FOR INDIRECT DAMAGES OR LOSSES lin contrac1 or lorl) IN CONNECTION WITH VERSIONS OR
<br />RELEASES OR SERVICES OR THIS AGREEME~~, I~ClUDING BUT NOT LIMITED TO DAMAGES FOR LOST
<br />PROFITS, LOST SAVINGS, OR INCIDENTAL, CONSEQU!:NTIAl, OR SPECIAL DAMAGES, EXCEPTING LOSS
<br />
<br />Class Software Services Agreement
<br />
<br />Page 6
<br />
<br />OR DAMAGE FOR PERSONAL INJURY OR DAMAGE TO TANG'BLE PROPERTY RESULTING 'ROM THE SQ'eE
<br />NEGliGENCE OF CSS'S.
<br />13.6 LIMITS ON LABILITY .IF FOR ANY REASON. CSS BECOMES LIABLE TO CUSTOMER OR ANY
<br />OTHER PAATY FOR OIRECHRAW OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND
<br />'lEGARDLESS CF TCiE FORM OF ACTION (in contract or tort). EXCEPTING LIABILITY FOR PERSON iNJURY
<br />OR DAMAGE TO TANGIBLE PROPERTY, INCU'lRED tN CO~NECTlON W,TH THIS AGREEMENT OR THE
<br />RELEASES OR SER\i1CES, THEN:
<br />
<br />(A: THE AGGREGATE LIABILITY OF CSS FOR ALL DAMAGES. INJURY, AND LIABILITY 'NCURRED BY
<br />CUSTOMER AND ALL OTHER PART,ES IN CONNECTION WITH TCiE VERSIONS OR RELEASES OR
<br />SERVICES. S-iAlLBE LIMITED TO AN AMOUNT EQUAL ,0 TrE CHARGES ASSOCIATED WITH THE
<br />PROV,SION OF SUCH VERSION OR RELEASE OR SERVICE PAID TC CSS FOR THE RELEASES OR
<br />SERVICES WHICH GAVE R,SE TO THE CLAIM FOR DAMAGES; AND
<br />
<br />(B) CUSTOMER MAY NOT BRI NG OR INITIATE ANV ACT OR PROC!:EDING AGAINST CSS AAISlNG au,
<br />OF THIS AGREEMENT CR RELATING TO RELEASES OR SERVICES MORE THAN TWO YEARS
<br />AFTER THE CAUSE OF ACTION HAS ARISEN,
<br />
<br />13.7 SEPARATE ENFORCEABILITY. SECTIONS 13.3, 13.4, 13,5 AND 13.6 ARE TO BE CONSTRUED AS
<br />SEPARATE PROVISIONS AND SHALL EACH BE IND,VlDUAlL Y ENFORCEABLE.
<br />
<br />14. TERM
<br />14.1 Term - The term of this Agreement shall commence on the Support Start
<br />Date and, subject to termination as provided herein, shall continue for a term
<br />of one year; after which it shall be automatically renewed for subsequent one
<br />year terms on the same terms and conditions as set out herein (with the
<br />exception of the fees payable which may be revised by CSS in accordance
<br />with this Agreement) upon CSS rendering an invoice therefor unless
<br />terminated by the Customer one hundred and twenty (120) days prior to the
<br />annual renewal date.
<br />
<br />15. TERMINATION
<br />15.1 Termination - This Agreement shall terminate in either of the following
<br />events:
<br />
<br />(a) at the option of either party if the other party materially defaults in the
<br />performance or observance of any of its obligations hereunder and fails
<br />to remedy the default within 30 days after receiving written demand
<br />therefor; or
<br />(b) at the option of either party if the other party becomes insolvent or
<br />bankrupt or makes an assignment for the benefit of creditors, or if a
<br />receiver or trustee in bankruptcy is appointed for the other party, or if
<br />any proceeding in bankruptcy, receivership, or liquidation is instituted
<br />against the other party and is not dismissed within 30 days following
<br />commencement thereof; or
<br />(c) 60 days after non receipt of payment of annual fees by Customer for
<br />CSS as specified by this Agreement
<br />
<br />provided that the right of termination shall be in addition to all other rights and
<br />remedies available to the parties for default or wrong-doing by each other.
<br />
<br />15.2 Susoension of Obliaations -If either party should default in the
<br />performance or observance of any of its obligations hereunder, then, in
<br />addition to all other rights and remedies available to the non-defaulting party,
<br />the non-defaulting party may suspend performance and observance of any or
<br />all its obligations under this Agreement, without liability, until the other party's
<br />default is remedied, but this Section shall not permit the Customer to suspend
<br />its obligation to make payments owing in respect Df Support and other
<br />Software Services.
<br />
<br />16. GENERAL
<br />16.1 Comolete Aareement
<br />This is the complete and exclusive statement of the Agreement between the
<br />parties with respect to the subject matter contained herein and supersedes
<br />and merges all prior representations, proposals, understandings and all other
<br />agreements, oral or written, express or implied, between the parties relating to
<br />the matters contained herein. This Agreement may not be modified or altered
<br />except by written instrument duly executed by both parties.
<br />
<br />07/11/00
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