BINDVIEW 2-2005 - Laserfiche WebLink

Home Browse Search

CONSULTING SERVICES PROVISIONS 12. Warranties and Indemnities Concerning the Services We make the following warranties to you concerning the Services, subject to the limitations in Sections 18 and 21. If you ex- perience a breach of any of such warranties, we will take action as indicated below. 12.1 Performance 12.2 Noninfringement a) WHAT WE WARRANT TO YOU All Services provided to you under a SOW will be performed with reasonable care and skill in accordance with appli- cable industry standards. The Oeliverables will not infringe any valid patent right, copyright, trade se- cret right, or similar intellectual prop- erty right of any third party. We do not make this warranty, however, in respect of (i) any such right owned or assertable by you or any of your Affiliates?] nOT (ii) infringement arising from a Deliv- erable's compliance with a written specification provided by you, or by a third party on your behalf, pursuant to an applicable SOW.22 b) WHAT WE WILL DO (see Section 12.3) I) We will make reasonable efforts to correct the breach. 2) If the breach is material and we do not correct it within 10 business days after your notice of such breach, then at your request we will refund a reason- able pro-rata portion of the fees and expense reim- bursements that you paid in respect of the Services as to which the breach occurred. Any such refund is waived ifnot requested in writing, with a statement of your reasons for the request, within 90 days after the date of our invoice for the Services in question. Claim Defense (see Section 19) and Infringement Remedies (see Section 20) 12.3 Exclusive remedies The remedies set forth above in column (b) of Sections 12.1 and 12.2 are your EXCLUSIVE REMEDIES for any breach of the corresponding warranties in column (a). 12.4 Other Indemnity a) Subject to Section 19 (Claim Defense), we will defend and indemnify you and your Affili- ates and each of their directors, officers, shareholders, employees and agents (collectively the "Indemnified Parties") from and against any and all injuries, damages. losses, liabilities, claims, judgments and settlements, including all reasonable costs, expenses and attorneys fees, resulting from any action or claim brought against any of the Indemnified Parties, to the extent that the same arise from any negligent act or omission or any willful misconduct by our personnel while performing the Services or while at your site. b) Without limiting the parenthetical note just before Section 9, the defense. and indemnity ob- ligations of subparagraph (a) do not apply to any injuries, damages, etc., arising or allegedly arising from any error, malfunction, nonperformance by (i) Software for which you have ac- quired a License hereunder, or (ii) the BindView Policy Operations Center (BPOC); nor from any use of such Software or the BPOC; such risks are exclusively addressed in the respective provisions of this Agreement that apply to such Software and/or to the BPOC. 21 Section /2.2(a)(2){i): See note 13. 22 Section /2.2(a)(2)(ii): If a SOW provides that we are to build a Deliverable in accordance with your specifications, we can- not make a nOllinfringemenr warranty about that Deliverable. BINDVIEW CUSTOMER AGREEMENT 95-3172 PAGE 17