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16. BPOC Warranties I,. SPOC PROVISIONS We make the following warranties to you, subject to the limitations in Sections 18 and 21. If you experience a warranty breach, we will take action as indicated below. a) WHA T WE WARRANT TO YOU 16.1 System Availability 1) The SP~C System will be available to you 7x24x365 at 98 percent uptime measured over a quarterly period, except for system mainte- nance and upgrades. We will attempt to ar- range for all planned outages to occur after- hours during a four~hour time window (i.e. 8PM - l2AM EST) and to give you a mini- mum of 48 hours' notice via ernail prior to all planned outages. 16.2 Noninfringement 1) We are authorized to grant you the right to use the BPOC System as set forth in this Agreement. 2) The BPOC System, your use of it as in. structed by its online documentation}3 and the Documentation, will not infringe any valid patent right, copyright, trade secret right. or similar intellectual property right of any third party. We do not make this warranty in re- spect of any such right owned or assertable by you or any of your Affiliates.24 b) WHAT WE WILL DO (see Section 16.3) 1) Plan A: We will use commercially rea- sonable efforts to restore the BPOe System and its functionality as soon as reasonably possible given the circumstances surrounding any given period of downtime. 2) Plan B: If the BPOC System and its func- tionality are not restored within a reasonable time, not to exceed 30 days without your writ- ten approval, you may terminate your BPOC subscription by written notice to us, in which case we will refund your paid subscription fee for the then-applicable subscription period, pro-rated as of the date that you reported to us that the BPae System was failing to comply with the warranty of Section 16.I(a). Claim Defense (see Section 19) and Infringement Remedies (see Section 20) 16.3 Exclusive remedies The remedies set forth above in column (b) of Sections 16.1 and 16.2 are your EXCLUSIVE REMEDIES for any breach of the corresponding warranties in column (a). 23 Section 16.2(0) (2): IJyou happen to use the BPOC System in the course of infringing an otherwise-unrelated patent, copy- right, etc., we cannot he responsible for such infringement. 24 Section 16.2(a)(2j.jinal sentence: For obvious reasons, we do not want one of your affiliates suing us, and then for you to claim indemnity rights, because XQ!d are supposedly infringing the affiliate's !P rights by using our software. BINDVIEW CUSTOMER AGREEMENT 95-3172 PAGE 21