|
Project, and the parties agree that Company will continue to
<br />provide the Services, as originally set forth in the Scope of Work,
<br />and Customer will continue to pay the Fee, as originally set forth
<br />in the Scope of Work.
<br />4. Independent Contractor Relationship.
<br />Company's relationship with Customer will be that of an
<br />independent Contractor and nothing in this Agreement should
<br />be construed to create a partnership, joint venture, or
<br />employer - employee relationship. Customer is not an agent of
<br />Company and is not authorized to make any representation,
<br />contract, or commitment on behalf of Company, or to bind
<br />Company in any way. Company is not an agent of Customer and
<br />is not authorized to make any representation, contract, or
<br />commitment on behalf of Customer, or to bind Customer in any
<br />way. Company will not be entitled to any of the benefits, which
<br />Customer may make available to its employees, such as group
<br />insurance, profit sharing or retirement benefits.
<br />5. Proprietary Information.
<br />During the Term of this Agreement and after the termination of
<br />this Agreement, the parties will take all steps reasonably
<br />necessary to hold the other party's Proprietary Information in
<br />confidence, will not use the other party's Proprietary
<br />Information in any manner or for any purpose not expressly set
<br />forth in this Agreement, and will not disclose any such
<br />Proprietary Information to any third party without the disclosing
<br />party's express prior written consent. "Proprietary Information'
<br />includes, but is not limited to (a) trade secrets, inventions, ideas,
<br />processes, formulas, source and object codes, data, other works
<br />of authorship, know -how, improvements, discoveries,
<br />developments, designs and techniques; and (b) information
<br />regarding plans for research, development, new products,
<br />marketing and selling, budgets and unpublished financial
<br />statements, licenses, prices and costs, suppliers and customers;
<br />and (c) information regarding the skills and compensation of
<br />employees . Nothing will be considered to be Proprietary
<br />Information if (1) it is readily available to the public other than
<br />by a breach of this Agreement; (2) it has been rightfully received
<br />by the receiving party from a third party without confidential
<br />limitations; (3) it has been independently developed by the
<br />receiving party without reference to or use of the disclosing
<br />party's Proprietary Information; or (4) it was rightfully known to
<br />the receiving party prior to its first receipt from the disclosing
<br />party. The receiving party shall be entitled to disclose the
<br />disclosing party's Proprietary Information if required by law or a
<br />judicial order; provided that the receiving party first provides
<br />prompt notice of the required disclosure to the disclosing party,
<br />and complies with any protective or similar order obtained by
<br />the disclosing party limiting the required disclosure.
<br />6. Representations and Warranties; Warranty Disclaimer.
<br />6.1 Customer represents and warrants that (a) it has full right
<br />and power to enter into and perform its obligations under this
<br />Agreement, and (b) it will take all reasonable precautions to
<br />prevent injury to any persons (including employees of Company)
<br />or damage to Company's property during the Term of this
<br />Agreement.
<br />6.2 Company represents and warrants that (a) it has full right
<br />and power to enter into and perform its obligations under this
<br />Agreement, and (b) it will take all reasonable precautions to
<br />prevent injury to any persons (including employees of
<br />Customer) or damage to Customer's property during the Term
<br />of this Agreement.
<br />6.3 Company warrants that any Hardware provided pursuant to
<br />this Agreement shall operate in good working order for a period
<br />of one (1) year from Contract Execution Date, as that term is
<br />defined in Exhibit A of the PremierPro Support and Maintenance
<br />Agreement. Any changes or modifications to the Hardware by
<br />any person other than Company, or any combination of the
<br />Hardware with other materials by any person other than
<br />Company, voids this limited warranty. This limited warranty is
<br />also void if failure of the Hardware results from
<br />transportation, neglect, misuse, or misapplication of the
<br />Hardware by any person other than Company; from any
<br />accident beyond Company's control; from use of the Hardware
<br />not in accordance with this Agreement or documentation
<br />provided in connection with the Hardware; or from
<br />Customer's failure to provide a suitable environment for the
<br />Hardware.
<br />6.4 The express warranties in Sections 6.2 and 6.3 above are
<br />lieu of all other warranties, express, implied or statutory,
<br />arising from or related to this Agreement and any hardware
<br />provided to Customer hereunder, including, but not limited
<br />to, any implied warranties of merchantability, fitness for a
<br />particular purpose, title, and non - infringement of third party
<br />rights. Customer acknowledges that it has relied on no
<br />warranties other than the express warranties in Sections 6.2
<br />and 6.3 of this Agreement. Except for the express warranty
<br />in Section 6.3 of this Agreement, Company provides the
<br />Services and Hardware to Customer "as is" and "as
<br />available," and Company does not warrant that the Services
<br />or Hardware will be uninterrupted or error free, and
<br />Company hereby disclaims any and all liability in connection
<br />therewith. This warranty disclaimer is made regardless of
<br />whether Company knows or has reason to know of Customer's
<br />particular needs. No Company employee, agent, dealer, or
<br />distributor of Company is authorized to modify this limited
<br />warranty, or make any additional warranties, whether orally,
<br />in writing, or otherwise. This Section 6.4 shall be enforceable
<br />to the fullest extent permitted by applicable law.
<br />7. Customer Remedies; Limitation of Liability.
<br />7.1 If Customer finds what it reasonably believes to be a
<br />failure of the Hardware to conform to the limited warranty in
<br />Section 6.3 of this Agreement, and provides Company with a
<br />written report that describes such failure in sufficient detail to
<br />enable Company to reproduce or understand such failure,
<br />Company and its suppliers' entire liability and Customer's
<br />exclusive remedy for breach of the limited warranty in Section
<br />6.3 regarding the Hardware, is for Company to use
<br />commercially - reasonable efforts to correct or provide a
<br />workaround for the failure at no additional charge to
<br />Customer. If, in Company's sole discretion, it provides
<br />25KK -14
<br />
|