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t. LIMITED WARRANn'. FORCE MAJEII""" AND LIMITATION OF LIABILITY: 9. 1 PR~:IItE warrants that the servicl lided hereunder will be perlormed in a workmanlik, ')er in accordance with reasonable commercial standards. PRIME does not warrant that the operation of the Products will be uninterrupt-- or error free or that all error¡ for Software will be remedied. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT AND ALL SERVICE AGREEMENTS ARE FOR THE PERFORMANCE OF SERVICES ONLY, AND THAT THE WARRANTY STATED IN THE FIRST LINE OF THIS SECTION AND REMEDIES SET FORTH HEREUNDER ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS. ORAL OR WRITIEN, EXPRESS, IMPLIED OR STATUTORY, RESPECTING THIS AGREEMENT, THE SERVICE AGREEMENTS. AND THE MAINTENANCE SERVICES AND PARTS PROVIDED HEREUNDER. PRIME MAKES NO OTHER REPRESENT A TlONS, WARRANTIES OR INDEMNIFICATION INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE RESPECTING THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER. 9.2 PRIME will not be deemed in default of any obligation hereunder nor will PRIME be liable for any failure or delay in perlormance which results directly or indirectly from "Acts Of God", acts of civil or military authorities, civil disturbance, war, strikes, fire, theft or vandalism or other causes beyond PRIME's reasonable control. In no event shall PRIME be liable to Customer for (I) any special, indirect. incidental. or consequential damages. even if PRIME has been advised of the possibility of such damages, (II) any damages resulting from loss of use, data or profits, or any defect in Software or documentation. or (III) any claim, whether in contract or tort, that arose more than one (1) year prior to institution of suit thereon. IN NO EVENT SHALL PRIME'S LIABILITY EXCEED THE TOTAL MAINTENANCE CHARGES PAID OR PAYABLE WITH RESPECT TO THE PRODUCT INVOLVED IN THE DAMAGE DURING THE TWELVE MONTHS OF THE RELEVANT SERVICE AGREEMENT IMMEDIATELY PRECEDING THE DATE OF THE DAMAGE. 9.3 Customer acknowledges that the charges which apply to the Maintenance Services are based in part upon the limited warranty and limitation. of liabilities and remedies set forth in this Agreement. 10. SERVICE AGREEMENT SUSPENSION AND TERMINATION: II CustOmer is in default of its payment obligations hereunder, PRIME may suspend service pending receipt of payment. In addition to PRIME's termination rights pursuant to Section I. Paragraphs 5.3 and 6.4 of the Agreement. PRIME, in addition to any other remedies it may have, may terminate the applicable Service Agreement if (a) Customer is in default of its payment obligations hereunder and such default continues for ten (10) days following receipt of written notice from PRIME. or, (b) Customer is in default of any other obligation hereunder and such default continues for thirty (30) days following receipt of written notice, or Ic) Customer is in default of a lease obligation to PRIME. It is agreed that Customer will pay PRIME all costs and expenses, including reasonable attorney's fees, incurred by PRIME in exercising any of its rights or remedies. , 1. RIGHT TO SUBCONTRACT: . PRIME reserves the right to subcontract the Maintenance Services to be provided hereunder. In such event. the rights and obligations of PRIME and Customer will not be diminished. ,2. NON.ASSIGNMENT: Customer may not assign any of its obligations, rights or remedies under this Agreement or any Service Agreement and any su'èh attempted assignment shall be null and void. ,3. NON-WAIVER: The failure or delay of either par.y to exercise any right or remedy provided for herein shall not be deemed a waiver of that right or remedy or of any other rights or remeòies available hereunder. ,4. ENTIRE AGREEMENT: ,'::.1 This Agreement inciuòing Sections I through XIII and any Addenda signed by both par1ies and the Service Agreements contain the entire understanding of Customer and PRIME with respect to the Maintenance Services provided hereunder and supersede all prior oral or written communications with respect to the subject matter hereof. This Agreement. the Addenda and the Service Agreements and the rights and obligations 01 the parties thereunder shall b-: governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. except the laws relating to conflicts of laws. ,'::.2 !! any provision or portion of this Agreement or of any Service Agreement is held to be unenforceable or invalid, the remaining provisions and portions thereof shall nevertheless be given full force and effect. and the parties agree to negotiate, in good faith. a substitute valid provision which most nearly effects the parties' intent in entering this Agreement or Service Agreement. WITHOUT UMITING THE FOREGOING. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT OR SERVICE AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISClAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER. IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT. 14.3 In the event of a conflict between the terms of this Master Service Agreement and the terms appearing on a Product Schedule, the terms of the Product Schedule shall prevail. . I 14.4 This Agreement and the Service Agreements may be amended only by an instrument in writing executed by Customer and PRIME. SECTION II-PREMIUM PLUS SERVICE ,. "Service Hours": Unless otherwise specified on the Product Schedule, the Service Hours for Premium Plus Service as referred to in this Section II will be twentY four (24) hours by seven (7) days coverage, excluding PRIME (24 hour) holidays. 2. PRIME will provide Premium Plus Service as defined in this Section during the Service Hours on the Equipment identified by Service Code "PPS"on the Product Schedule. Premium Plus Service includes: A. Telephone access to PRIME's Service Center for problem reporting; 6. Scheduled Preventive Maintenance based on the specific needs of the Equipment as determined by PRIME; C. Remedial Maintenance perlormed at Customer's site following prompt telephone notification by Customer to PRIME's Service Center of Equipment failure. If PRIME's customer service representative determines that parts or resources not available at Customers' site are reo Quired for the repair, Remedial Maintenance will cease and will be resumed when the parts or resources are available. 5 -- lr