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<br />'JUN-20-2001 08: 38 <br /> <br />DATA GENER.cL <br /> <br />expressly covered by the Support Service <br />Description), operating snpplies or accessories <br />including media, cosmetic restoration, or <br />furnishing materials for these purposes. <br /> <br />12. WARRANTY AND DISCLAIMER <br />A. DG warrants that Support Services <br />provided under this Agreement will be performed <br />in a professional and workmanlike manner by <br />persons qualified by training and experieuce to <br />perform such services. SuPpOrt Services will be <br />provided in a manner that does not unreasonably <br />interfere with Customer's operations. <br /> <br />B. DG disclaims all othor warranties. Any <br />ather conditions, representations or warranties <br />inconsistent wirh or addirionalto the foregoing <br />warranty, whether express or implied, by statute, <br />common law or otherWise, are excluded. DG <br />DISCLAIMS ANy IMPLIED WARRANTIES OF <br />MERCHANTABILITY AND FITNESS FOR PURPOSE. <br /> <br />C. Acceptance of a' product under DG' s <br />Multi. Vendor Support Program is not a warranty <br />or representation that the product will be compat. <br />ible with the System in which it is installed. <br /> <br />13. LIMITATION OF LIABILITY <br />A. DG's TOTAL LaBILITY FOR DAMAGES <br />ARISING UNDER TIns AGREEMENT, WHETHER IN <br />AN ACTiON OF CONTRACT OR TORT, INCLUDING <br />NEGLIGENCE, SHALL NOT EXCEED THE TOTAL <br />CHARGES FAID By CUSTOMER TO DG FOR THE <br />SUPPORT SERVICES PERFORMED UNDER THIS <br />AGREEMENT DURING THE TWELVE (12) MONTR <br />PRRIOD IMMEDIATELY PRECEDING A CLAIM OR <br />$100,000 WHICHEVER IS THE CRUTtR. <br /> <br />B. DG shall not be liable for any damag~s <br />resulting from Customer's failure to perform its <br />responsibilities to its Cu.stomers; or for ad.verse <br />effects that installation of an update or revision to <br />Supported Software may have on Customer's use <br />of a System. even if such updates or reviSions are <br />installed by DO at Customer's request. <br /> <br />C. L" NO EVENT SHALL EITHER PARTY BE <br />LIABLE FOR (I) ANY INCIDENTAL, SPECtAL, <br />INDIRECT OR CONSEQUENTIAL DAMAGES <br />(INCLUDING BUT NOT LIMITED TO LOST PROFtT <br />AND DAMAGES RESULTING FROM LOST DATA OR <br />LOss OF USE OF COMPuTING F"CILITIES), HOW- <br />EVER CAUSED, I!VEN tF THE PARTY WAS ADVISED <br />OF THE POSSIBILtTY OF SuCH DAMAGES; OR <br />(H) ANY FAILURE OR DRLAV IN A PARTY'S <br />PERFOIL'IANCE DUE IN wnOLE OR IN PART TO .'-''''1.' <br />CAUSE BEYOND THAT PARTY'S REASONABLE <br />CONTROL. <br /> <br />D. The limitations in this section shaH not <br /> <br />Ma= Suppon Agreement <br /> <br /> <br />508 229 4836 <br /> <br />P.84 <br /> <br />apply to liability for death, bodily injury, or loss <br />or damage to a party's tangible property caused by <br />the negligence or willful misconduct of the other <br />party or its employees_ <br /> <br />14, CUSTOMER REPRESENTATION <br />If Customer is an authorized DG reseller <br />from whom the end user at the Installation <br />Location purchased or leased a supported System, <br />Customer's contracts with snch end user shall <br />incorpotate far DG's beneilt tl:1e information in. <br />the Support Service DeSCriptions and the obliga. <br />tions and limitations set forth in the Warranty and <br />Disclaimer and Limitation of Liability sections of <br />this Agreement <br /> <br />B. TERMINATION <br />A. Notwithstanding the Term of Agreement <br />section of this Agreement, DG may SUspend' <br />perfonnance of any or all Schedules, Or terminate <br />this Agreement, or both, with ten (10) days <br />notice, if CUstomer fails to pay in a timely manner <br />any charges not the subject of a bona fide dispute. <br /> <br />B. Notwithstanding the Term of Agreement <br />section, either party shall have the right to <br />terminate any or all Schedules, or tenninate this <br />Agreement, or both, if a trustee in bankruptcy, <br />receiver, or similar officer is appointed regarding <br />the other parlY's property; Or jf the other party <br />(i) transfers a majority interest of its equity or <br />assets other than in connection wirh a Corporate <br />reorganization; (il) admits in writing its inability <br />to pay its debts generally as they become due; <br />(iii) executes a document in the nature of an <br />assignment for the benefit of creditors; <br />(iv) defaults in rhe performance of any malerial <br />obligation under this Agreement, and (subject to <br />paragraph A of this secrion) such event or <br />condition is not remedied to the reasonable <br />satisfaction of [he injured party within sixty (60) <br />days after written notice to the other parry. <br /> <br />16. GENERAL <br />A. This Agreement and all transactions <br />within its scope shall be construed in accordance <br />with and governed by the laws of the Common- <br />wealth of Massachnsetts, excluding its conflict of <br />law rules and excluding the Convention on <br />Contracts for the International Sale of Goods. <br /> <br />B. Neither this Agreement nOr any <br />individual Schedule or other uansaction under it <br />shall be assigned by either party without the prior <br />wrinen Consent of the other party. which consent <br />shall not be unreasonabiy withheld. DG may sub- <br />contract the performance of Support Services. bur <br />shall remain Obligated to Customer for perform. <br /> <br />Rev. 06/00 <br />