Each party represents and warrants that:
- it is a legal entity duly organized, validly existing, and in good standing;
- it has all requisite corporate power and authority to execute, deliver, and perform its obligations hereunder;
- it is duly licensed, authorized, or qualified to do business and is in good standing in every jurisdiction in which a license, authorization, or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized, or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder;
- it will comply with all laws and regulations applicable to the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder;
- it will avoid deceptive, misleading, or unethical practices that could adversely affect the performance of the other party’s obligations under this Agreement or damage the reputation of the other party;
- it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder; and
- its performance of its obligations under this Agreement will not violate any other agreement between such party and any third party.
- During a warranty period commencing upon the date of sign-off of the Customized ASHLIN DLP package by the CUSTOMER and continuing for two
- months thereafter, ASHLIN warrants for CUSTOMER’s benefit alone that the Software, if operated as directed in the Documentation and in accordance to training provided by ASHLIN, shall operate substantially in accordance with the functional specifications in the Documentation. ASHLIN does not warrant that CUSTOMER’s use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure or that it will be compatible with all of CUSTOMER’s or End Customers’ equipment or software configurations, or that the Software is designed to meet all of CUSTOMER’s or End Customers’ business requirements. ASHLIN’s sole liability and CUSTOMER’s exclusive remedy for any breach of this warranty shall be that ASHLIN shall use commercially reasonable efforts to remedy any failure of the Software to materially conform to its Documentation in accordance with the terms of the Support Services, provided that
- CUSTOMER is current in its payment obligations under this Agreement,
- CUSTOMER is not otherwise in material breach of this Agreement, and
- CUSTOMER notifies ASHLIN in writing of the claimed failure promptly upon discovery and within the warranty period, with a specific description of the Software’s nonconformance sufficient to allow ASHLIN to replicate such nonconformance. During the warranty period stated above, should ASHLIN be unable to remedy such failure within a reasonable time after notice has been provided, CUSTOMER shall be entitled to terminate this Agreement and to receive a refund of license fees paid hereunder for the then current annual period of the Term of the license granted hereunder for such Software. For the sake of clarity, CUSTOMER shall be entitled to Support Services as described in the Sales Order throughout the Term of this Agreement, if applicable.
Exclusions from Warranty
ASHLIN will not be obligated under Section 2.2 to correct, cure, or otherwise remedy any nonconformity if:
- Customer has made any alteration to the Software Deliverables without ASHLIN’s knowledge and consent;
- the Software Deliverables have been misused or damaged other than by personnel of ASHLIN;
- the nonconformity is a result of the combination of the Software Deliverables with third-party hardware, software, or other technology that was not provided by or specified by ASHLIN;
- the nonconformity is caused by data entered or provided by Customer, which data is corrupted, erroneous, or in an improper format; or
- ASHLIN has not been notified of the existence and nature of such nonconformity or defect within the warranty period.
Warranty of Services
ASHLIN warrants that the Services shall be performed in a professional and workmanlike manner. In the event that Customer notifies ASHLIN of a breach of the foregoing warranty in connection with a Statement of Work within sixty (60) days after the performance of such Services, as Customer’s sole and exclusive remedy, and ASHLIN’s sole liability, ASHLIN shall, at its option, re-perform the nonconforming Services or refund to Customer the fees paid for the nonconforming Services pursuant to the applicable Statement of Work.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE DELIVERABLES AND THE SERVICES ARE PROVIDED “AS IS” AND ASHLIN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) IMPLIED WARRANTIES OF TITLE, NON¬INFRINGEMENT, AND MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; OR (B) ANY WARRANTY THAT ANY DELIVERABLE IS FREE FROM ERROR. NO WRITTEN OR ORAL INFORMATION OR ADVICE GIVEN BY ASHLIN SHALL CREATE ANY WARRANTY.
CUSTOMER shall not make any representations or warranties, express or implied, as to the performance of the Software, support or other services on behalf of ASHLIN or otherwise make commitments on behalf of ASHLIN that are inconsistent with the representations and warranties made by ASHLIN or that are not approved by ASHLIN and any such warranty or representation shall not be binding on ASHLIN.
Limitation of Liability
CUSTOMER AND ASHLIN HAVE DISCUSSED THE RISKS AND REWARDS ASSOCIATED WITH THIS AGREEMENT AS WELL AS ASHLIN’S FEES FOR SERVICES. CUSTOMER AND ASHLIN AGREE TO ALLOCATE CERTAIN OF THE RISKS SO THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF ASHLIN AND ITS PARTNERS, PRINCIPALS, DIRECTORS, EMPLOYEES, AFFILIATES, AND SUBSIDIARIES (THE “ASHLIN PARTIES”) TO CUSTOMER AND ALL THIRD PARTIES FOR ALL CLAIMS WHATSOEVER RELATED TO THE DELIVERABLES, THE SERVICES PROVIDED HEREUNDER OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID TO ASHLIN BY CUSTOMER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS UNDER THE STATEMENT(S) OF WORK THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL ANY OR ALL OF THE ASHLIN PARTIES BE LIABLE FOR ANY BUSINESS EARNINGS, LOST PROFITS, DATA OR GOODWILL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF ANY OF THE ASHLIN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.