|
<br />AVAYA
<br />
<br />8. WARRANl1ES AND UMiTATIONS
<br />Avaya warrants 10 Customer that Maintenance Services will be carried out in a
<br />professional and workmanlike manner by qualtìed personnel. If the Maintenance
<br />Services have not been so performed and Customer notifies Avaya in writing in
<br />reasonable detaü within thrty (30) days alter the performance of the Maintenance
<br />Services, then Avaya win, at its option. re.perform the Maintenance Services,
<br />correct the defICiencies or render a prorated refund based on the original charge
<br />for the deficient Maintenance Services. EXCEPT AS REFERENCED AND
<br />LIMITED IN THIS SECTION, NEITHER AVAYA NOR ITS LICENSORS OR
<br />SUPPLIERS MAKES mY EXPRESS REPRESENTATIONS OR WARRANTIES
<br />WITH REGARD TO ANY PRODUCTS OR SERVICES OR OTHERWISE
<br />RELATED TO THIS AGREEMENT. AVAYA DOES NOT WARRANT
<br />UNINTERRUPTED OR ERROR FREE OPERATION OF PRODUCTS OR THAT
<br />PRODUCTS AND SERVICES WILL PREVENT TOLL FRAUD. TO THE
<br />MAXIMUM EXTENT PERMITTED BY APPliCABLE LAW, AVAYA DISCLAIMS
<br />AlL IMPLIED OR STATUTORY WARRANTIES, INClUDING, BUT NOT LIMITED
<br />TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
<br />PARTICUlAR PURPOSE. AND NON-INFRINGEMENT. THE WARRANTY
<br />REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT WILL BE
<br />CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
<br />
<br />9. U8ITAT1ON OF UABIUTY
<br />9.1 Excluded Types. IN NO EVENT WILL EITHER PARTY OR ITS
<br />RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR mY
<br />INCIDENTAL, SPECiAl, STATUTORY, INDIRECT OR CONSEQUENTiAl
<br />DAMAGES, OR FOR mY LOSS OF PROFITS, REVENUE, DATA. TOLL
<br />FRAUD, OR COST OF COVER
<br />9.2 Allllregata Llabllty. THE LIABILITY OF BTHER PARTY FOR Am CLAIM
<br />ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT
<br />EXCEED THE GREATER OF (Q AN AMOUNT EQUAl TO THE AGGREGATE
<br />TOTAL AMOUNT OF AlL FEES PAID OR PAYABlE UNDER THIS
<br />AGREEMENT IN THE 'TWElVE (12) MONTH PERIOD IMMEDIATELY
<br />PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM; OR (ii)
<br />$10,000.
<br />9.3 Scope. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY
<br />TO mY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF
<br />LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT
<br />NOT LIMITED TO, NEGliGENCE), OR OTHERWISE, AND REGARDLESS OF
<br />WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF
<br />THEIR ESSENTIAl PURPOSE. THE LIMITATIONS OF LIABILITY WILL NOT
<br />APPlY, HOWEVER, IN CASES OF WILLFUL MISCONDUCT, PERSONAl
<br />INJURY OR BREACHES OF AVAYA'S LICENSE RESTRICTIONS.
<br />
<br />...... GenetI/ CcmIiatIo
<br />VwIion USO1fH
<br />
<br />9.4 Raprnantalves. The limitations of üabüity in this Section also will apply to
<br />any liability of drectors, officers. employees, agents and suppliers.
<br />10. GOVERNING LAW AND DISPUTE RESOLU110N
<br />10.1 Governing Law. This Agreement and any disputes arising out of or relating
<br />to this Agreement ("Disputes") will be governed by the laws of the state of New
<br />Jersey, excluding: (Q conflict of law principles; (ii) the United Nations Convention
<br />on Contracts for the International Sale of Goods; and (Hi) the Uniform Computer
<br />Information Transactions Act (UCITA) to the extent modified and adopted.
<br />10.2 Arbltrllon. Subject 10 Section 10.3, all Disputes will be finany resolved by
<br />binding arbitration before one arbitrator, selected pursuant to the Commercial
<br />Rules of the American Arbitration Association ("AM'). The proceedings win be
<br />conducted in Morristawn, New Jersey pursuant to such rules. The arbitrator so
<br />appointed will have the authority to determine issues of arbilrability and 10 consider
<br />and rule on dispositive motions. The arbitrator wiD have authority only 10 award
<br />COO'Ipensatory damages within the scope of the limitations of Section 9 and wiD not
<br />aWII'd punitive or exemplary damages. The arbitrator will not have the authoriy to
<br />Imit, expand or othelwise modify the terms of the Agreement. The parties, ther
<br />representatives, other part~nts and the arbilrator wi. hold the existence,
<br />content and resul of mediation and &rbiIration in confidence.
<br />10.3 Injunclw RelIef. Nothing in this Section will be construed to preclude
<br />either party from seeking provisional remedies, including but not Imited 10
<br />temporary restraining orders and prelininary injunctions from any court of
<br />COO'Ipetent jurisdiction in order to protect its rights pending arbitration.
<br />10.4 TIme UMt Actions on Disputes between the parties must be brought in
<br />accordance wilh this Section wiIIIin two (2) years alter the cause of action arises.
<br />
<br />11. TERII, TERMINA 110M AND CANCELLATION
<br />11.1 Tlrm. This Agreement wi. be effective from the dale of Avaya's
<br />acceptance of the order unless terminated earlier in accordance with this Section.
<br />Avaya will provide Maintenance Services for an inilial term of one (1) year, unless
<br />a different term is expressly defined in the order. Maintenance Services will be
<br />renewed automaticany fa successive one (1) year terms applying the then most
<br />similar current generally available support plan offering for the applicable CUSTOIIER:
<br />Supported Products and then current rates, unless either party gives the other (Com llny NImI)
<br />written notice of its intent not to renew at least thirty (30) days prior to the
<br />expi'alion of the applicable initial or renewal term. By:
<br />11.2 TIlllllIIIIIon for ConwnItncI. Prior to commencement of Maintenance
<br />Services. Customer may cencelthe order fa Maintenance Services in whole or in NImI:
<br />part and receive a refund of any applicable prepaid amount. Within thrty (30)
<br />days after the COO'Imencement, Customer may terminate Maintenance Services in 1111:
<br />whole or in part effective immediately subject to payment of a proportionate
<br />amount of fees for thirty (30) days of coverage. Customer may terminate the order DaI8:
<br />
<br />for Maintenance Services in whole or in part at any tme during the current term
<br />upon thirty (30) days written notice to Avaya, subject to payment of a cencellation
<br />fee to Avaya equal to the lesser of: (i) the pro rata Maintenance Services charges
<br />for the next twelve (12) months; or (ii) the pro rata Maintenance Services charges
<br />for the remainder of the current term.
<br />11.3 Tlrmlndon for CIUllo Either party may terminate this Agreement by
<br />written notice to the other party effective immediately upon receipt, if the other
<br />party fails to cure any material breach of this Agreement within a thrty (30) day
<br />period aller having received a witten notice from the non-breaching party detailing
<br />the breach and requesting the breach be cured.
<br />
<br />12. MISCELLANEOUS
<br />Avaya may assign this Agreement and any order hereunder to any of its affiliated
<br />entilies or to any entily to which Avaya may sell, transfer, convey, assign or lease
<br />all or substantially all of the assets or properties used in connection with the
<br />pelformance hereunder. Avaya may subcontract any or all of the obligations to be
<br />pelformed by it hereunder, but will retain responSÌJBity for the work. Avaya win not
<br />be liable for any delay or faill.l8 in performance to the extent such delay or failure
<br />is ceused by events beyond Avaya's reasonable control, such as fre, flood, act of
<br />God, explosion, war or the engagement of hostilities, strike, embargo, labor
<br />dispute, government requirement, civil disturbances, civil or military authority, and
<br />inability to secure materials or transportation facilities. The failure of either party to
<br />assert any of ils rights under this Agreement win not be deemed to constitute a
<br />waiver by that party of its right thereafter 10 enforce each and every provision of
<br />this Agreement in accordance willi its terms. This Agreement constitutes the
<br />entre understanding of the pII1ies with respect to the subject matter thereof and
<br />will supersede an p-evious end contemporaneous COO'Imunications,
<br />representations or understandngs, either oral or written, between the parties
<br />relating 10 that subject matter end will not be contradicted or supplemented by any
<br />prior COLI"S8 of deaing ~ the parties. All notices under this Agreement and
<br />any modifications or amencments to this Agreement must be in witing.
<br />
<br />Pogo 2"'2
<br />
|