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System Equipment has a defect in materials or workmanship or has an operating failure that occurs from normal use thereof,
<br />S&S shall use commercially reasonable efforts to work with the third-party supplier to provide a timely solution for the
<br />Customer.
<br />C. Customer acknowledges that any warranty provided by S&S is limited to the Application Software and
<br />used on the Customer's computer system listed in Exhibit 1. Customer further acknowledges that modifications made to the
<br />Application Software by Customer, and not at the direction of S&S, will void S&S' warranty of the Application Software,
<br />unless specifically stated otherwise in writing by S&S. Customer also acknowledges that S&S cannot be responsible for the
<br />Customer's use of third-party software or hardware products that are used or implemented in conjunction with S&S'
<br />Information System, including Third Party Software and Hardware, and such other systems and modules where S&S did not
<br />consult on, provide, or configure the systems.
<br />D. S&S represents and warrants that all Third Party Software product manufacturers, listed in the Budget
<br />Detail, have authorized S&S to grant licenses or sub-licenses to such software.
<br />E. S&S' obligation for breach of warranty shall include timely correction or replacement of the module or
<br />component of the Application Software that fails to conform to such warranty. In no event shall S&S be liable for any
<br />breach of warranty unless notice thereof is given to S&S by the Customer during the Warranty Period.
<br />F. UNDER NO CIRCUMSTANCES SHALL S&S BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT,
<br />CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO,
<br />DAMAGES FOR LOSS OF PROFITS, WORK STOPPAGE, SYSTEM FAILURE OR MALFUNCTION, LOSS OF DATA
<br />OR ANY OTHER DAMAGES OR LOSSES IN CONNECTION WITH THE USE OF THE INFORMATION SYSTEM OR
<br />OTHERWISE, EVEN IF S&S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING
<br />LIMITATION SHALL NOT APPLY WITH RESPECT TO S&S' INDEMNIFICATION OBLIGATION SET FORTH IN
<br />SECTION 5(I) BELOW.
<br />G. To the extent permitted by applicable law, Customer's right to recover damages from S&S in connection
<br />with this Agreement, whether such damages are direct or indirect, in contract or in tort, for breach of warranties, failure to
<br />perform, infringement of intellectual property rights, loss of profits, special, incidental or other consequential damages
<br />arising from S&S' performance (or failure of performance) under this Agreement shall not exceed the total value of fees paid
<br />by Customer to S&S for the item of software or services giving rise to such liability. Nothing in this paragraph shall be
<br />construed as creating a right on the part of Customer to receive any indirect, special, incidental or consequential damages,
<br />except to the extent such damages are expressly mandated by statute.
<br />H. The warranties contained in this Section are in lieu of all other warranties, express or implied. S&S' express
<br />warranties shall not be enlarged, diminished or affected by, and no obligations or liabilities shall arise out of, S&S' rendering
<br />of technical or other advice or service in connection with the Third Party Software, Hardware and any other products.
<br />EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, S&S DISCLAIMS AND
<br />EXPRESSLY WAIVES ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
<br />IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO
<br />REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE WITH
<br />RESPECT TO THE GOODS OR SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, AND THAT
<br />CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY SET OUT
<br />HEREIN.
<br />I. S&S Indemnity. In the event there is a third party claim alleging that Customer's use of the Application
<br />Software in accordance with this Agreement constitutes an infringement of a United States patent, copyright, or trade secret,
<br />S&S shall, at its expense, defend Customer and pay any final judgment against Customer or settlement agreed to by S&S on
<br />Customer's behalf; provided that Customer promptly notifies S&S of any such claim or proceeding and shall give S&S full
<br />and complete authority, information, and assistance to defend such claim or proceeding. S&S shall have sole control of the
<br />defense of any claim or proceeding and all negotiations for its compromise or settlement, provided that S&S shall consult
<br />with the Customer regarding any settlement of the claim.
<br />In the event that the Application Software product is finally held to be infringing and its use by the
<br />Customer is enjoined or S&S deems that it may be held to be infringing, S&S shall, at S&S' election: (1) procure for the
<br />Customer the right to continue use of the Application Software; or (2) modify or replace the Application Software so that it
<br />becomes non-infringing; or (3) in the event S&S determines that (1) or (2) is not commercially practicable, S&S may
<br />terminate the license with respect to the infringing module and refund or credit to Customer the license fees paid by
<br />Systems & Software, Inc.
<br />6
<br />Confidential
<br />25C-10
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