Disclaimers and Notices
A. Software Warranty
ACM warrants to Customer that it has the full legal right to grant to Customer the license granted under this Agreement, and that the Software Application, in the form delivered to the Customer by ACM and when properly used for the purpose and in the manner specifically authorized by this Agreement, does not infringe in any material respect upon any United States patent or copyright. ACM shall reimburse Customer for any damages finally awarded against and paid by Customer to the extent attributable to a violation of the foregoing warranty. ACM shall have no liability under this Section 7 unless Customer gives written notice to ACM within ten (10) days after any applicable infringement claim is initiated against Customer and allows ACM to have sole control of the defense or settlement of the claim. If any applicable infringement claim is initiated, or in ACM’s sole opinion is likely to be initiated, then ACM shall have the option, at its expense, to: (a) modify or replace all or the infringing part of the Software Application so that it is no longer infringing, provided that the Software Application functionality does not change in any material adverse respect; or (b) procure for Customer the right to continue using the infringing part of the Software Application; or (c) remove all or the infringing part of the Software Application, and refund to Customer a pro rata portion of the Fees paid by Customer to ACM during the Term, in which case this Agreement shall terminate with respect to the Software Application or the part thereof removed.
ACM shall have no liability under any provision of this Agreement with respect to any performance problem, claim of infringement or other matter to the extent attributable to any unauthorized or improper use or modification of the Software Application, any unauthorized combination of the Software Application with other software, any use of any version of the Maintenance Release of the Software Application other than the latest Maintenance Release of the Software, Application or any breach of this Agreement by Customer.
C. Services Warranty
ACM warrants that that it shall use reasonable skill and care in the provision of the Services. Customer’s sole and exclusive remedy for ACM’s breach of this warranty shall be for ACM to re-perform the applicable Services.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SYSTEM AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” AND EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 7, ACM MAKES NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER WITH RESPECT TO THE FUNCTIONALITY, OPERABILITY OR USE OF THE SYSTEM OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN SECTION 7.A., ACM DOES NOT WARRANT THAT THE SYSTEM, INCLUDING, FOR THE AVOIDANCE OF DOUBT, THE RULE UNIVERSE, WILL BE FREE FROM BUGS, DEFECTS OR ERRORS, OR THAT THE SYSTEM WILL BE ACCESSIBLE WITHOUT INTERRUPTION. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY ACM OR ANY OF ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY, AND CUSTOMER IS NOT ENTITLED TO RELY ON SUCH ADVICE OR INFORMATION AND HAS NOT RELIED ON SUCH ADVICE OR INFORMATION IN ENTERING INTO THIS AGREEMENT. Some jurisdictions do not allow the exclusion of limited warranties, so the above exclusion may not apply to Customer. This limited warranty gives Customer specific legal rights, and Customer may also have other rights which vary from one jurisdiction to another.
E. No Representations
No representation or warranty is made or given by ACM (i) in respect of Customer’s usage of the System or Services (or the results arising from such usage), (ii) that the functionality of the System or Services will meet Customer’s requirements, (iii) that the use of the System or Services will be uninterrupted or error-free, (iv) that the Rule Universe is complete and accurate, or (v) that the System or Services or use thereof complies with Regulatory Requirements. ACM will not be Customer’s custodian of records for any of the Customer Data. Customer accepts responsibility for the selection of the System and Services to achieve its business purpose and for ensuring that its use of the System and Services (and the results arising from such usage) complies with Regulatory Requirements. Customer undertakes at its own expense to defend and indemnify ACM or, at Customer’s option and expense, settle any claim or action brought or threatened against ACM alleging that the System or Services or Customer’s use of the System or Services (or any part thereof) violates a Regulatory Requirement.
Use of Third Parties
ACM may use services or applications developed and owned by third-party providers (“Third-Party Providers”) as ACM may contract with from time to time (collectively, “Third-Party Services”). The Third-Party Services are neither sold nor distributed to Customer and Customer may use the Third-Party Services solely as part of the System. Customer acknowledges and agrees that its use of the Third-Party Services is subject to ACM’s agreements with the Third-Party Providers. Customer may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Services. Customer may not reverse engineer, decompile, or disassemble the Third-Party Services. Customer acknowledges and agrees that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Services offered in connection with the System, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Services.
Limitation of Liability
Disclaimer. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ACM BE LIABLE TO CUSTOMER FOR ANY LOSS, INCLUDING WITHOUT LIMITATION LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, RULE VIOLATIONS, FINES, COSTS, EXPENSES, LIABILITIES, INTEREST, PENALTIES, CONSEQUENTIAL, DIRECT, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, INCLUDING REASONABLE ATTORNEYS FEES, WHETHER OR NOT FORESEEABLE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT, WARRANTY CLAIM, TORT (INCLUDING NEGLIGENCE OR OTHERWISE) OR OTHERWISE, AND IN EACH CASE REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH LOSS. IN NO EVENT WILL SUPPLIER BE LIABLE FOR ANY CLAIM BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED. Some jurisdictions do not allow the limitations or exclusions of liability for incidental or consequential damages, so the above limitation or exclusion may not apply. Customer assumes the sole responsibility for the selection and use of the System. Customer shall hold ACM, its officers, employees, members, partners, directors and agents harmless from any claims, demands, losses, fines, costs, expenses, liabilities and damages of every kind, including reasonable attorneys fees, (collectively, “Losses”) arising from or related to, directly or indirectly, this Agreement and shall defend, indemnify and hold ACM harmless against any Losses incurred as a result of any such claims. The indemnification obligations under this section shall survive any termination or expiration of this Agreement.