|
(vii) Customer's failure to upgrade hardware to meet the demands of any upgraded Software or improvements in
<br />Software functionality; which SmartWorks has stated to Customer is required;
<br />(vii!) Customer's computer(s), network or other hardware malfunctioned and the malfunction caused the defect,
<br />or any other event of force majeure as set out in Section 15(h);
<br />(ix) Any failures, losses or errors resulting from or related to hosting services used in connection with the Software,
<br />including without limitation, any harmful actions of Users or third parties, or resulting from corrupt data (for
<br />greater certainty, Customer is not permitted to use a third party to host the Software, such hosting services
<br />may only be provided by SmartWorks' service providers or where applicable its authorized reseller's service
<br />providers that have been approved by SmartWorks in advance in writing); or
<br />(x) Any failure of the Software due to external causes such as, but not limited to, power failures or electrical surges.
<br />(c) Custom erWarranty.
<br />Customer represents and warrants to SmartWorks that it shall comply with all applicable laws in connection with
<br />its use of the Software and in its performance under this Agreement including but not limited to those laws
<br />regarding restrictions on exports and economic sanctions including end -user, end use and destination restrictions
<br />by Canadian, U.S. and other governments related to SmartWorks and its service providers products, services and
<br />technologies, and the U.S. Export Administration Regulations, and the International Traffic in Arms Regulations).
<br />(d) Disclaimer.
<br />TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET
<br />OUT IN SECTION 10(A) THE SOFTWARE IS LICENSED, THE MAINTENANCE AND SUPPORT SERVICES,
<br />ALL DOCUMENTATION AND OTHER MATERIALS AND SERVICES ARE PROVIDED TO CUSTOMER, "AS IS"
<br />AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED,
<br />WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF
<br />TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL
<br />PROVIDED HEREUNDER OR IN CONNECTION HEREWITH.
<br />SMARTWORKS, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR
<br />CONDITIONS REGARDING THE SOFTWARE, THE DOCUMENTATION, THE PROFESSIONAL SERVICES,
<br />THE MAINTENANCE AND SUPPORT SERVICES, AND ANY OTHER PRODUCTS, SERVICES AND
<br />MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED
<br />TO, WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A
<br />PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT.
<br />it. Intellectual Property Indemnity
<br />(a) In the event that there is a third party claim against Customer alleging that Customer's use of the Software
<br />in accordance with this Agreement constitutes an infringement of a valid United States or Canadian patent,
<br />copyright, trade -mark or trade secret, SmartWorks shall, at its expense, defend Customer and pay any amounts
<br />finally awarded against Customer by a court of competent jurisdiction or agreed to in a settlement approved by
<br />SmartWorks in advance, provided that: (i) Customer gives SmartWorks prompt written notice of any such claim
<br />and full opportunity to defend the same; (ii) Customer has not made any admissions or entered into settlement
<br />negotiations either prior to or after providing notice to SmartWorks of the applicable claim except with SmartWorks'
<br />prior written consent, (ii) SmartWorks has sole control of the defense of any claim or proceeding and all
<br />negotiations for its compromise or settlement; and (iv) Customer assists and provides information to SmartWorks
<br />throughout the action or proceeding.
<br />(b) SmartWorks' liabilityfor any claims under this Section 11 shall be reduced to the extent such claim arises
<br />from: (i) alterations or modifications to the Software by Customer or a third party in any manner whatsoever except
<br />with the prior written consent of SmartWorks; (ii) combination, integration or use of the Software with software,
<br />hardware or other materials other than the Required Hardware and Required Software where such claim would
<br />not have arisen but for such combination, integration or use; (iii) use of the Software other than in compliance with
<br />
|