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SirsiDynix in writing of its claim. Provided that such claim is reasonably
determined by SirsiDynix to be SirsiDynix’s responsibility, SirsiDynix shall,
within ninety (90) days of its receipt of Customer's written notice; (i) correct
such Error; (ii) provide Customer with a plan reasonably acceptable to
Customer for correcting the Error; or (iii} if neither (i) nor (ii) can be
accomplished with reasonable commercial efforts from SirsiDynix, then
SirsiDynix or Customer may terminate the affected SirsiDynix Software
license and Customer will be entitled to an equitable adjustment in the fees
paid for ihe affected SirsiDynix Software at SirsiDynix's discretion. The
preceding warranty cure shall constitute SirsiDynix’s entire liability and
Customer's exclusive remedy for cure of the warranty set forth herein.
7.2 SirsiDynix Subscriptions. SirsiDynix warrants that Subscriptions, as
used in accordance with the Documentation, will operate in all material
respects in conformity with the Documentation.
7.3 Exclusions. SirsiDynix is not responsible for any claimed breach of any
warranty caused by: (i) modifications made to the SirsiDynix Software by
anyone other than SirsiDynix; (ii) the combination, operation or use of the
SirsiDynix Software with any items that are not part of the Operating
Environment; (iii) Customer's failure to use any new or corrected releases
of the SirsiDynix Software made available by SirsiDynix; (iv) SirsiDynix's
adherence fo Customer's specifications or instructions; or (v) Customer
deviating from the operating procedures described in the Documentation.
7.4 Third Party Products. SirsiDynix warrants that it is an authorized
distributor of the Third Party Product and that with the execution of this
Master Agreement and the applicable EULA, Customer will have the right to
use such Product in accordance with the terms and conditions of the terms
of this Master Agreement and the applicable EULA. SIRSIDYNIX MAKES
NO OTHER WARRANTY WITH RESPECT TO ANY THIRD PARTY
PRODUCTS. CUSTOMER'S SOLE REMEDY WITH RESPECT TO SUCH
THIRD PARTY PRODUCTS SHALL BE PURSUANT TO THE ORIGINAL
LICENSOR’S WARRANTY, IF ANY, TO SIRSIDYNIX, TO THE EXTENT
PERMITTED BY THE ORIGINAL LICENSOR. THIRD PARTY PRODUCTS
ARE MADE AVAILABLE BY SIRSIDYNIX ON AN “AS IS, AS AVAILABLE"
BASIS.
7.5 Hardware. SirsiDynix warrants that it is an authorized distributor of the
Hardware. Hardware warranties shall be govemed by the manufacturer's
warranty. SIRSIDYNIX MAKES NO WARRANTIES OF ANY KIND WITH
RESPECT TO HARDWARE OR HARDWARE MAINTENANCE.
CUSTOMER'S SOLE REMEDY WITH RESPECT TO SUCH HARDWARE
OR HARDWARE MAINTENANCE SHALL BE PURSUANT TO THE
MANUFACTURER’S WARRANTY, IF ANY.
7.6 Disclaimers. THE WARRANTIES SET FORTH IN THIS MASTER
AGREEMENT ARE IN LIEU OF, AND SIRSIDYNIX, ITS LICENSORS AND
SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i)
ANY WARRANTY THAT ANY PRODUCT IS ERROR-FREE OR WILL
OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE
CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, (iii) ANY WARRANTY THAT CONTENT OR THIRD
PARTY PRODUCTS WILL BE ACCURATE, RELIABLE AND ERROR-
FREE AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM
STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION
GIVEN BY SIRSIDYNIX, ITS AFFILIATES, CONTRACTORS OR
EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY
PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES THAT USE OF OR
CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR
UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY
PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES
AND CUSTOMER DATA AND THAT NO FORM OF ENCRYPTION IS
FOOL PROOF. ACCORDINGLY, SIRSIDYNIX CANNOT AND DOES NOT
GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY
INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM
CONNECTED TO THE INTERNET.
GC# 352967
8. EXCLUSION AND LIMITATION OF LIABILITY
8.4 TO THE FULLEST EXTENT PERMITTED BY LAW, SIRSIDYNIX'S
TOTAL LIABILITY (INCLUDING ATTORNEYS FEES AWARDED UNDER
THE MASTER AGREEMENT) TO CUSTOMER FOR ANY CLAIM BY
CUSTOMER OR ANY THIRO PARTIES UNDER THE MASTER
AGREEMENT, EXCLUDING LIABILITY PURSUANT TO SECTION 6
(Indemnification), WILL BE LIMITED TO THE FEES PAID BY CUSTOMER
DURING THE PREVIOUS 12 MONTHS FOR THE PRODUCT WHICH IS
THE SUBJECT MATTER OF THE CLAIM.
8.2 IN NO EVENT WILL SIRSIDYNIX BE LIABLE TO CUSTOMER FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE,
TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME,
GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE),
WHETHER BASED ON BREACH OF CONTRACT, BREACH OF
WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY
OR OTHERWISE, WHETHER OR NOT SIRSIDYNIX HAS PREVIOUSLY
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
83 NO CLAIM ARISING OUT OF THE MASTER AGREEMENT,
REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER MORE
THAN TWO YEARS AFTER THE CAUSE OF ACTION ARISES.
9. TERM AND TERMINATION
9.1 Term of Master Agreement. Subject to Section 10.12 below, the
term of this Master Agreement shail commence on the Effective Date and
shall continue in full force and effect until the expiration or termination of all
Quotes, unless otherwise terminated earlier as provided hereunder.
9.2 Product and Services Term. The respective initial term of Software
Maintenance, Hardware Maintenance, Subscriptions, and Subscription
Software as applicable, is specified in the Quate (“tnitial Term’). The Initial
Term and any renewal term shall automatically renew for the same length
as the Initial Term unless either party gives written natice 60 days prior to
the end of any previous Term of its intention to terminate the Subscription
or Maintenance service. The Initial Term and renewal terms are referred to
as the “Term”.
9.3.1 Termination. Either party may terminate the Master Agreement
immediately upon written notice if the other party commits a non-remediabie
material breach of the Master Agreement, or if the other party fails to cure
any remediable material breach or provide a written plan of cure acceptable
to the non-breaching party within 30 days of being notified in writing of such
breach. Where the non-breaching party has a right to terminate the Master
Agreement, the non-breaching party may at its discretion terminate the
Master Agreement or the applicable Quote. Quotes that are not terminated
shall continue in full force and effect under the terms of this Master
Agreement 9.3.2 Following termination of the Master Agreement, Custamer
agrees to certify that it has returned or destroyed ail copies of the applicable
Product and Confidential Information and acknowledges that its rights to use
the same are relinquished.
9.4. Suspension. SirsiDynix will be entitled ta suspend any or all
performance upon 10 days written notice to Customer in the event Customer
is in breach of the Master Agreement. Further, SirsiDynix may suspend
Customer's use of and access to all or a partion of the Subscriptians if, and
so long as, in SirsiDynix's sole judgment, there is a security risk created by
Customer that may interfere with the proper continued pravision of services
or the operation of SirsiDynix’s netwark ar systems. SirsiDynix may impose
an additional charge to reinstate service following such suspension.
Confidential
Customer Initial and Date:
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