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GENERAL TERMS
<br />conFigurations, and business processes and otherwise relating to
<br />Customer as is reasonably requested by TAN from time to time.
<br />3.2 ConFdential In[ormation.
<br />(a) In the performance of or otherwise in connection with this
<br />Agreement, one party < "Disclosing Party ") may disclose to the
<br />other party ( "Receiving Party ") certain Confidential Information
<br />of the Disclosing Party. "ConFdential Information" means any
<br />information of either party, which is not generally known to the
<br />public, whether of a technical, business or other nature
<br />(including, but not necessarily limited to: trade secrets, know
<br />how, computer program source codes, and information relating
<br />to the customers, business plans, promotional and marketing
<br />activities, finances and other business affairs of such party);
<br />provided that the soma is conspicuously marked or otherwise
<br />identified as confidential or proprietary information prior to,
<br />upon or promptly after receipt by the other party; and provided
<br />Further that the any software or software application server
<br />source code provided by TAN or its licensors shall be deemed to
<br />constitute Confidential Information without further designation
<br />by TAN. The Receiving Party wil[ treat such Confidential
<br />Information as confidential and proprietary of the Disclosing
<br />Party and will use such Confidential Information solely for the
<br />purposes for which it is provided by the Disclosing Party and
<br />will not disclose such Confidential Information to any third party
<br />(other than a third party under contract whereby that third party
<br />has agreed in writing to keep the ConFdential Information
<br />confdential)_
<br />(b) Exclusions. The obligations under this paragraph will not
<br />apply to any: (i) use or disclosure of any information pursuant to
<br />the exercise of the Receiving Party's rights under this
<br />Agreement; (ii) information that is now or later becomes
<br />publicly available through no fault of the Receiving Party; (iii)
<br />information that is obtained by the Receiving Party from a third
<br />party authorized to make such disclosure (other than in
<br />connection with this Agreement) without any obligation of
<br />secrecy or confidentiality; (iv) information that is independently
<br />developed by the Receiving Party (e.g., without reference to any
<br />Confidential Information); (v) any disclosure required by
<br />applicable law (e.g., pursuant to applicable securities laws or
<br />legal process), provided that the Receiving Party will use
<br />reasonable efforts to give advance notice to and cooperate with
<br />the Disclosing Party in connection with any such disclosure; and
<br />(vi) any disclosure with the consent of the Disclosing Party.
<br />a. WARRANTY
<br />Limited Warranty of Software. TAN warrants that when
<br />utilized by Customer in a manner authorized hereunder, the
<br />Software will conform to the functional specifications set out in
<br />the user documentation accompanying the Software for ninety
<br />(90) days from delivery of the Softwaze ( "Warranty Period ").
<br />Delivery shall be deemed to havo occurred upon TAN's email
<br />transmission of an FTP link to Customer permitting download of
<br />the Software from TAN's designated online site, or where
<br />delivered in the form of physical media, F.O.B. origin. TAN's
<br />sole obligation and liability hereunder with respect to any failure
<br />to so perform will be to use reasonable efforts to remedy any
<br />non - conformity which is reported to TAN in writing by
<br />Customer within that Wazranty Period. In the event TAN is
<br />unable to remedy such non - conformity within a reasonable time
<br />using reasonable efforts, a) in respect to the Licensed Software
<br />TAN may refund to Customer the license fee pertaining to the
<br />Licensed Software, subject to Customer's return ofthe Licensed
<br />Software, and this Agreement will be automatically terminated,
<br />or b) in respect to Hosted Software TAN may refund to
<br />Customer the fees paid by the Customer to TAN for Services
<br />provided to implement the Hosted Software, and this Agreement
<br />will be automatically terminated .All warranty service will be
<br />performed at service locations designated by TAN. This Limited
<br />Warranty is void if failure of the Software has resulted from
<br />accident, abuse or misapplication by Customer. Any
<br />replacement Software will be warranted for the remainder ofthe
<br />original warranty period or 30 days, whichever is longer.
<br />5. EXCLUSION OF WARRANTIES AND
<br />LIMITATION OF LIABILITY
<br />5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES.
<br />THE EXPRESS WARRANTIES SET OUT IN THIS
<br />AGREEMENT ARE IN LIEU OF ALL OTHER
<br />WARRANTIES, AND THERE ARE NO OTHER
<br />WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
<br />GUARANTEES OF ANY KIND WHATSOEVER
<br />APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
<br />(1N CONTRACT OR TORT OR OTHERWISE) OR CUSTOM,
<br />INCLUDING, BUTNOT LIMITED TO THOSE REGARDING
<br />MERCHANTABILITY, FITNESS POR PURPOSE,
<br />DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE,
<br />DESIGN, CONDITION, OR QUALITY. WITHOUT
<br />LIIvITTING THE ABOVE, TAN DOES NOT WARRANT
<br />THAT ANY PRODUCTS OR SERVICES PROVIDED
<br />HEREUNDER WILL MEET THE REQUIREMENTS OF
<br />CUSTOMER OR THAT THE OPERATION OF PRODUCTS
<br />PROVIDED HEREUNDER WILL BE FREE FROM
<br />INTERRUPTION OR ERRORS.
<br />5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
<br />OBLIGATION TO REPAIR OR REPLACE PRODUCTS
<br />DAMAGED BY EXTERNAL CAUSE OR THROUGH THE
<br />FAULT OR NEGLIGENCE OF ANY PARTY OTHER THAN
<br />TAN.
<br />5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
<br />THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
<br />EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
<br />ANY OTHER PARTY FOR INDIRECT DAMAGES OR
<br />LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
<br />INCLUDING BUT NOT LIMITED TO DAMAGES FOR
<br />LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
<br />USE OF INFORMATION OIi SERVICES, OR INCIDENTAL,
<br />CONSEQUENTIAL, OR SPECIAL DAMAGES.
<br />5.4 L,IMTTS ON LIABILITY. IF', FORANY REASON, TAN
<br />BECOMES LIABLE TO CUSTOMER OR ANY OTHER
<br />PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
<br />ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
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