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caCtiWONETWORX
<br />4.2. Without limiting the Customer's obligations, Customer will:
<br />a) use its best efforts to upgrade to any new Release or Version of the
<br />Software that is designated for general distribution, as soon as
<br />possible after becoming aware of its availability;
<br />b) ensure that at all times at least one current staff person 0 the
<br />Customer, who is the Customer contact person named on the Cover
<br />Page and per c), has been fully trained on the Software;
<br />c) designate by written notice a single site and single person as the point
<br />of contact toy telephone or other contact, which site and/or person the
<br />Customer may change upon 14 days prior notice; and
<br />d) provide particulars of the Customer's system configuration in sufficient
<br />detail to allow TAN to effectively provide Services hereunder.
<br />5. REPRESENTATIONS AND WARRANTIES
<br />5.1. Insurance - TAN represents and warrants that it does and will at all
<br />times during the term of this Agreement maintain general liability insurance
<br />as described in the Certificate of Insurance.
<br />5.2. Limited Warranty of Services - TAN warrants that all services provided
<br />hereunder will be performed in full conformity with the Agreement, with the
<br />skill and care which would be exercised by those who perform similar
<br />services at the time the services are performed, and in accordance with
<br />accepted industry practice. In the event of a breach of the express
<br />warranties contained herein and /or in the event of non - performance and/or
<br />failure of TAN to perform the services in accordance with the Agreement,
<br />TAN will, at no cost to Customer, re- perform or perform the services so that
<br />the services conform to the warranties.
<br />6. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
<br />6.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
<br />WARRANTIES SET OUT IN SECTION 5.1 AND 5.2 ARE IN LIEU OF ALL
<br />OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,
<br />REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND
<br />WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT
<br />OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE
<br />REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE,
<br />CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR
<br />QUALITY, IN EFFECT REGARDING THE SERVICES.
<br />62. NO INDIRECT DAMAGES -IN NO EVENT WILL TAN BE LIABLE TO
<br />CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR
<br />LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THIS
<br />AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST
<br />PROFITS, LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL,
<br />PUNITIVE OR SPECIAL DAMAGES, EXCEPTING LOSS OR DAMAGE
<br />FOR PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY
<br />RESULTING FROM THE SOLE NEGLIGENCE OF TAN.
<br />6.3. LIMITS ON LIABILITY -DESPITE ANY OTHER PROVISION OF THIS
<br />AGREEMENT, IF FOR ANY REASON, TAN BECOMES LIABLE TO
<br />CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER
<br />DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
<br />THE FORM OF ACTION (IN CONTRACT OR TORT), EXCEPTING
<br />LIABILITY FOR PERSON INJURY OR DAMAGE TO TANGIBLE
<br />PROPERTY, INCURRED IN CONNECTION WITH THIS AGREEMENT,
<br />THEN:
<br />A) THE AGGREGATE LIABILITY OF TAN FOR ALL DAMAGES,
<br />INJURY, AND LIABILITY INCURRED BY CUSTOMER AND ALL
<br />OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT WILL
<br />BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES PAID TO
<br />TAN FOR THE SERVICES WHICH GAVE RISE TO THE CLAIM FOR
<br />DAMAGES; AND
<br />B) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
<br />PROCEEDING AGAINST TAN ARISING OUT OF THIS AGREEMENT
<br />OR RELATING TO SERVICES MORE THAN TWO YEARS AFTER
<br />THE CAUSE OF ACTION HAS ARISEN,
<br />6.4. SEPARATE ENFORCEABILITY - SECTIONS 6.1, 6.2 AND 6.3 ARE
<br />TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE
<br />INDIVIDUALLY ENFORCEABLE.
<br />7. TERM
<br />7.1. Term - The tens of this Agreement will commence on the date of its
<br />execution and, subject to termination as provided herein, will continue
<br />indefinitely.
<br />8. TERMINATION
<br />81. Termination - This Agreement will terminate:
<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
<br />fails to remedy the default within 30 days after receiving written notice
<br />thereof from the non - defaulting party;
<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;
<br />c) at TAN' option upon the expiry of sixty (60) days following issuance by
<br />TAN of an invoice to the Customer for fees payable under this
<br />Agreement and such invoice remaining unpaid, provided that TAN has
<br />prior to terminating under this provision provided the Customer with at
<br />least ten (10) days' prior written notice of such non- payment, which
<br />minimum 10 -day period may expire before, simultaneously with, or
<br />after the sixty day period (Customer shall indemnify and reimburse
<br />TAN for any attorneys fees incurred by TAN in connection with
<br />collection of moneys from Customer due to it nonpayment); or
<br />d) at either party's option if the other party assigns or attempts to assign
<br />this Agreement other than as expressly permitted by this Agreement,
<br />provided that these rights of termination will be in addition to all other
<br />rights and remedies available to the parties for any breach or default
<br />hereunder.
<br />8.2. Suspension of Obligations - 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
<br />party, the non - defaulting party may suspend performance and observance
<br />of any or all its obligations under this Agreement, without liability, until the
<br />other party's default is remedied, but this Section will not permit the
<br />Customer to suspend its obligation to make payments owing in respect of
<br />Support and other Software Services.
<br />9. GENERAL
<br />9.1. Complete Agreement; Amendments - This Agreement, as modified
<br />and affected by TAN's standard Software license tees and the terms of any
<br />agreement between TAN and the Customer relating to licensing of Software
<br />(as opposed to the mere provision of Software, to which this Agreement
<br />relates in respect of Releases and Versions), is the complete and exclusive
<br />statement of the Agreement between the parties with respect to the subject
<br />matter contained herein and supersedes and merges all prior
<br />representations, proposals, understandings and all other agreements, oral
<br />or written, express or implied, between the parties relating to the matters
<br />contained herein. This Agreement may not be modified or altered except by
<br />written instrument duly executed by both parties, except that TAN may fill
<br />future purchase or other orders for further goods or services available under
<br />this Agreement, and if TAN does so the provisions of this Agreement will
<br />contain the only commercial terms applicable to such transaction despite
<br />such purchase or other order stating otherwise.
<br />9.2. Force Majeure - Dates or times by which either party is required to
<br />perform under this Agreement excepting the payment of any fees or charges
<br />due hereunder will be postponed automatically to the extent that any party is
<br />prevented from meeting them by causes beyond its reasonable control.
<br />The Active Network Ltd. Page 4 of 5
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