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Q6 Avelism ,'L L It Y '
<br />a
<br />Support Renewal Date, will immediately be payable by the Customer
<br />to TAN, such amount to be invoiced by TAN to the Customer. The
<br />Customer will immediately notify TAN upon any of these criteria
<br />no longer being met.
<br />6.4. If at any time after the Customer has initially licensed any of the
<br />Software from TAN, the Customer's right to receive Support and
<br />Maintenance, or comparable services, from TAN under this
<br />Agreement or a comparable agreement has lapsed for any reason
<br />whatsoever, voluntarily or otherwise, and the Customer wishes to
<br />receive Support and Maintenance from TAN, the Customer will pay to
<br />TAN, prior to re- instatement of Support and Maintenance services:
<br />a) all fees that would have been payable hereunder had this
<br />Agreement been in force during the time during which Support
<br />and Maintenance rights had so lapsed, and
<br />b) an additional fee of forty (40) per cent of the license fees which
<br />would be payable if the Software to be subject to such Support
<br />and Maintenance were licensed anew at TAN's then- standard
<br />license fees on the date of re- instatement of Support and
<br />Maintenance rights.
<br />7. ACCESS TO SYSTEM AND OTHER CUSTOMER
<br />OBLIGATIONS
<br />7.1. Customer will provide, at no cost to TAN
<br />a) sufficient space to allow TAN personnel on the Customers site
<br />to pedorm the on -site Services acquired hereunder;
<br />b) office supplies and services such as photocopying, facsimile and
<br />telephone access;
<br />c) without limiting a), education and training facilities adequate to
<br />the training services acquired hereunder, including classroom
<br />space, networked PCs (minimum 1 PC for every two training
<br />participants), networked printing capability, computer
<br />display /projection facilities, and flip chart or whiteboard, plus
<br />markers and other ancillary supplies;
<br />d) subject to the security requirements of the Customer, 24 hour
<br />access to the Customers system via either an ahvaysavailable
<br />telephone circuit or an always available internet connection to
<br />enable TAN or its designated representative to perform any of
<br />the obligations placed upon TAN by this Agreement.; and
<br />e) subject to the security requirements of the Customer, remote dial
<br />up/internet access methods approved by TAN to allow TAN to
<br />remotely diagnose and correct errors in the Software and
<br />provide other Services.
<br />7.2. Without limiting the Customers obligations, Customer will:
<br />a) use its best efforts to upgrade to any new Release or Version of
<br />the Software as soon as possible after becoming aware of its
<br />availability;
<br />b) ensure that at all times at least one current staff person of the
<br />Customer, who is the Customer contact person named on the
<br />Cover 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
<br />point of contact for telephone or other contact, which site and/or
<br />person the Customer may change upon 14 days prior notice;
<br />and
<br />d) provide particulars of the Customer's system configuration in
<br />sufficient detail to allow TAN to effectively provide Services
<br />hereunder.
<br />e. REPRESENTATIONS AND WARRANTIES
<br />e.1. Insurance — TAN represents and warrants that it does and will at
<br />all limes during the term of this Agreement maintain general liability
<br />insurance as described in the Certificate of Insurance.
<br />8.2. Limited Warranty of Services - TAN warrants that all services
<br />provided hereunder will be performed in full conformity with the
<br />Agreement, with the skill and care which would be exercised by those
<br />who perform similar services at the time the services are performed,
<br />and in accordance with accepted industry practice. In the event of a
<br />breach of the express warranties contained herein and/or in the event
<br />of non - performance andor failure of TAN to perform the services in
<br />accordance with the Agreement, TAN will, at no cost to Customer, re-
<br />perform or perform the services so that the services conform to the
<br />warranties,
<br />9. E)CLUSION OF OTHER WARRANTIES AND LIMITATION OF
<br />LIABILITY
<br />91. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE
<br />WARRANTIES SET OUT IN SECTION 8.1 AND 8.2 ARE IN LIEU OF
<br />ALL OTHER WARRANTIES, AND THERE ARE NO OTHER
<br />WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
<br />GUARANTEES OR ANY KIND WHATSOEVER, EITHER EXPRESS
<br />OR IMPLIED BY LAW (in contract or tort) OR CUSTOM, INCLUDING,
<br />BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY,
<br />FITNESS FOR PURPOSE, CORRESPONDENCE TO SAMPLE,
<br />TITLE, DESIGN, CONDITION, OR QUALITY.
<br />9.2. NO INDIRECT DAMAGES — IN NO EVENT WILL TAN BE
<br />LIABLE TO CUSTOMER OR TO ANY OTHER PARTY FOR
<br />INDIRECT DAMAGES OR LOSSES (in contract or tort) IN
<br />CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT
<br />LIMITED TO DAMAGES FOR LOST PROFITS, LOST SAVINGS, OR
<br />INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
<br />DAMAGES, EXCEPTING LOSS OR DAMAGE FOR PERSONAL
<br />INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING
<br />FROM THE SOLE NEGLIGENCE OF TAN.
<br />9.3. LIMITS ON LIABILITY -IF FOR ANY REASON, TAN BECOMES
<br />LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR
<br />ANY OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND
<br />REGARDLESS OF THE FORM OF ACTION (in contract or tort),
<br />EXCEPTING LIABILITY FOR PERSON INJURY OR DAMAGE TO
<br />TANGIBLE PROPERTY, INCURRED IN CONNECTION WITH THIS
<br />AGREEMENT, 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
<br />WILL BE LIMITED TO AN AMOUNT EQUAL TO THE
<br />CHARGES PAID TO TAN FOR THE SERVICES WHICH GAVE
<br />RISE TO THE CLAIM FOR DAMAGES; AND
<br />b) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR
<br />PROCEEDING AGAINST TAN ARISING OUT OF THIS
<br />AGREEMENT OR RELATING TO RELEASES OR SERVICES
<br />MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION
<br />HAS ARISEN.
<br />9.4. SEPARATE ENFORCEABILITY - SECTIONS 9.1, 9.2 AND 9.3
<br />ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL
<br />EACH BE INDIVIDUALLY ENFORCEABLE.
<br />to. TERM
<br />10.1. Term - The term of this Agreement will commence on the
<br />Support Start Date and, subject to termination as provided herein, will
<br />continue until the following Support Renewal Date, after which It will
<br />be automatically renewed for subsequent one year terms on the same
<br />terms and conditions as set out herein (with the exception of the fees
<br />payable which may be revised by TAN in accordance with this
<br />Agreement) upon TAN rendering an invoice therefor unless
<br />The Active Network N.A. Inc. Support and Maintenance 11 -11 -04 (Levels Description) Page 7 of 8
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