|
(b) procure for Customer the right to continue using the OTHER PERSON FOR LOSSES OR DAMAGES WHICH FALL INTO ANY
<br /> allegedly infringing part of the Solution; or OF THE FOLLOWING CATEGORIES: (a) LOST REVENUES, (b) LOST
<br /> (c) remove all or the allegedly PROFITS, (c) LOSS OF BUSINESS, (d) TRADING LOSSES, (e)
<br /> ( ) g y infringing part of the INACCURATE DISTRIBUTIONS OR (f) ANY INCIDENTAL, INDIRECT,
<br /> Solution, and (i) if Customer has paid a one-time upfront initial license EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF
<br /> fee for the applicable Solution, refund to Customer the corresponding ANY KIND, INCLUDING ANY OF THE FOREGOING LOSSES OR
<br /> portion of the license fee paid by Customer to Superion for the DAMAGES RESULTING FROM CUSTOMER'S USE OF THE SOLUTION
<br /> applicable Solution, less a reasonable rental charge equal to one- sixtieth OR SERVICES PROVIDED HEREUNDER, OR ARISING FROM ANY
<br /> (1/60) of the initial license fee for each month of use following the BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS
<br /> Order Execution Date, or (ii) if Customer is paying for the use of the AGREEMENT,WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS
<br /> Solution on a recurring basis, refund to Customer the corresponding OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT
<br /> portion of the unused recurringfee(s) paid by Customer to Superion with LIABILITY) OR OTHERWISE AND WHETHER OR NOT FORESEEABLE,
<br /> respect to the applicable Solution, and in each such case this Agreement EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OR WAS AWARE
<br /> shall terminate with respect to the Solution or part thereof removed. OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FOR PURPOSES
<br /> 4.3. Harmful Code. Using a recent version of a reputable virus- OF CLARIFICATION, THE FOLLOWING SHALL BE DEEMED "DIRECT
<br /> checking product (tc the extent commercially available), Superion will DAMAGES" AS BETWEEN CUSTOMER AND SUPERION FOR THE
<br /> check the Soluti )n, a; well as any systems used to deliver the Solution, PURPOSES OF THIS AGREEMENT (i) 4NY AND ALL DAMAGES,
<br /> for any viruses, •wor.ns or similar harmful code ("Harmful Code") and INCLUDING CONSEQUENTIAL AND SIMILAR DAMAGES, AWARDED
<br /> will use commer jail\, reasonable efforts to eliminate any such Harmful TO A THIRD PARTY FOR WHICH INDEMNIFICATION IS PROVIDED BY
<br /> Code that Super:on c stovers. A PARTY UNDER SECTION 4.2; (ii) CLE70MER'S OUT-OF- POCKET
<br /> COSTS TO NOTIFY AFFECTED PERSON 1 AND/OR PAY FOR CREDIT
<br /> 4.4. Exclusion or Unauthorized Actions. Superiors is not liable MONITORING SERVICES FOR SUCH PERSONS FOR A ONE-YEAR
<br /> under any provision of this Agreement for any performance problem, PERIOD INCURRED AS A RESULT 0 : SUPERION'S BREACH OF
<br /> claim of infringement or other matter to the extent attributable to any SECTION 5.
<br /> unauthorized use or modification of the Solution by or on behalf of
<br /> Customer, any unauthorized combination of the Solution with other 4.9. Exceptions. THE LIMITATIONS AND l XCLUSIONS SET
<br /> software or services (other than as specified in the Specified FORTH IN SECTIONS 4.7 AND 4.8 SHALL NO NO7 APPLY TO: (a)
<br /> Configuration), any Third-Party Hardware or Third-Party Services, and BREACHES OF THE SCOPE OF USE; (b) FAILURE T( PAY FEES WHEN
<br /> Third-Party Software (except as set forth in Sections 4.10 and 4.12), any DUE; (c) DAMAGES CAUSED BY EITHER PAR IY'S FRAUD OR
<br /> wrongful act or omission by Ca stonier, its Affiliates or its customers or WILLFUL MISCONDUCT; (d) A PARTY'S LIABILITY FOR DEATH OR
<br /> any breach of this Agreement b ' Customer. PERSONAL INJURY DUE TO THAT PARTY'S NEGLIGENCE; OR (e) A
<br /> PARTY'S LIABILITY FOR DAMAGES TO THE EXTENT THAT SUCH
<br /> 4.5. Force Majeure. Neithe- party shall be liable for, nor shall either LIMITATION OR EXCLUSION IS NOT PERMITTED BY APPLICABLE
<br /> party be considered in breach of this Agreement due to, any failure to LAW. THE LIMIT\TIONS AND EXCLUSIONS SET FORTH IN SECTION
<br /> perfo: rn its obligations under this Agreement (other than its payment 4.7 AND 4.8 DC .JOT APPLY TO CLAIMS FOR WHICH DEFENSE OR
<br /> obligations, which shall be suspended only for so long as the force INDEMNIFICATION IS PROVIDED BY A PARTY UNDER SECTION 4.2
<br /> majet:re event renders Customer unable by any means to transmit OR UNDERTHETERMS `JFTHE PSA.
<br /> payn ents when due hereunder) as a result of any act of God or a public
<br /> eneriiy or terrorist, act of any military, civil or regulatory authority, change 4.10. Third-Party Software. To facilitate Customer's access and
<br /> in any law or regulation. use of the Third-Party Software, the licensor(s) of such Third-Party
<br /> Software have agreed to allow Superion to provide the Third-Party
<br /> 4.6. Disclaimer. EXCEPT AS STATED IN SECTIONS 4, 6.5 AND 8.5, Software to Customer subject to the following additional conditions:
<br /> THE SOLUTION, DOCUMENTATION AND SERVICES ARE PROVIDED "AS
<br /> (i) the Third- Party Software shall be used only in conjunction with
<br /> IS," AND ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS OR any permissible use of the Solution specifically authorized in this
<br /> CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM Agreement, and (ii) the Third-Party Software shall be used only in
<br /> COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, accordance with licensor's terms and conditions and documentation
<br /> QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE for the Third-Party Software which, unless otherwise included in a
<br /> (INCLUDING IMPLIED WARRANTIES, TERMS OR CONDITIONS OF specific Supplement to the Order, shall be provided to Customer
<br /> MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A with the receipt of such Third-Party Software. Superion shall use
<br /> PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON- reasonable efforts to provide Customer the benefit of all
<br /> INFRINGEMENT) ARE, TO THE FULLEST EXTENT PERMITTED BY indemnities and warranties granted to Superion by the licensor(s) of
<br /> APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT. the Third-Party Software, to the extent possible without additional
<br /> 4.7. Limitations Cap. EACH PARTY'S TOTAL LIABILITY UNDER THIS cost to Superion, as and if permitted by Superion's agreement
<br /> AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE LIABILITY with the licensor of the Third-Party Software, and to the extent such
<br /> CAP. warranties and indemnities pertain to Customer's use of the Third-
<br /> Party Software hereunder. In the event of any defect in any Third-
<br /> 4.8. Consequential Damage Exclusion. UNDER NO Party Software (in the form delivered by Superion and when
<br /> CIRCUMSTANCES SHALL EITHER PARTY (OR ANY OF ITS AFFILIATES properly used for the purpose and in the manner specifically
<br /> PROVIDING OR RECEIVING THE SOLUTION, SERVICES OR OTHER authorized by this Agreement), Superion will use commercially
<br /> SOFTWARE UNDER THIS AGREEMENT) BE LIABLE TO THE OTHER OR ANY reasonable efforts to replace or correct the Third-Party Software
<br /> ATTY/AGR/2017.226/SPS PROFESSIONAL SERVICES AGREEMENT — EXHIBITS 1 THRU 6
<br /> REV: 09-27-17 PR
<br /> Page 8 of 20
<br />
|