|
<br />"
<br />
<br />Anacomp's imaging process (if possible); or (ii) the refund of any charges paid by Customer for the Services affected by such
<br />breach. In addition, If any magnetic computer tapes or other source materials fumished by Customer to Anacomp are damaged
<br />due to Anacomp's equipment or process, then Anacomp's sole obligation shall be to repair or replace the affected physical media
<br />at its own expense and Anacomp shall not be liable for the loss of any data and information thereon. Further, Anacomp shall not
<br />be responsible or liable in any manner for errors in data or information furnished by Customer as part of the source materials, and
<br />if Anacomp's imaging process creates errors in data or information, then Customer's sole and exclusive remedy shall be those set
<br />forth in items (i) and (ii) above. No claim will be allowed under the foregoing warranty unless Customer promptly notifies
<br />Anacomp of such claim in writing within thirty (30) days after its receipt of the output media. THE FOREGOING LIMITED
<br />WARRANTY IS ANACOMP'S SOLE WARRANTY FOR ANY SERVICES AND/OR PRODUCTS PROVIDED
<br />HEREUNDER OR ARISING OUT OF THIS AGREEMENT, AND IS IN LIEU OF ALL OTHER REPRESENTATIONS OR
<br />WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED
<br />TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A
<br />PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING HEREBY FULLY DISCLAIMED.
<br />11. LIMITATION OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF ANACOMP, ITS PARENT AND
<br />SUBSIDIARIES AND ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES, FOR ANY
<br />DAMAGES, LOSSES OR INWRIES TO THE CUSTOMER, OR THOSE CLAIMING BY OR THROUGH CUSTOMER,
<br />SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL CHARGES PAID OR PAYABLE BY CUSTOMER TO
<br />ANACOMP FOR THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE
<br />CLAIMED. ANACOMP, ITS PARENT AND SUBSIDIARIES AND ANY OF THEIR DIRECTORS, OFFICERS,
<br />EMPLOYEES, AGENTS AND AFFILIATES, WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY
<br />COSTS OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES ARISING OUT OF THE PERFORMANCE, NONPERFORMANCE OR BREACH OF THIS
<br />AGREEMENT, OR ARISING OUT OF THE DAMAGE OR DESTRUCTION OF ANY INFORMATION OR DATA
<br />CONTAINED IN ANY SOURCE MATERIAL PROVIDED BY CUSTOMER OR OUTPUT MEDIA CREATED BY
<br />ANACOMP, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR THE COST OF RECREATING ANY SUCH
<br />INFORMATION OR DATA, EVEN WHEN ANACOMP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
<br />DAMAGES OR CLAIMS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION,
<br />WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE,
<br />EVEN WHEN OTHER REMEDIES ARE IMPOSSIBLE, INEFFECTIVE, OR FAIL OF THEIR ESSENTIAL PURPOSE. THIS
<br />LIMITATION WILL NOT APPLY IN CASE OF PERSONAL INWRY OR TANGIBLE PROPERTY DAMAGE ONLY
<br />WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.
<br />12. SOFTWARE. For purposes of this Agreement, "Software" shall mean all computer software and updates, enhancements and
<br />derivative works of such software which are provided to Customer hereunder. Anacomp hereby grants Customer a nonexclusive,
<br />nontransferable and nonassignable license, without right of sublicense, to use the Software in machine-readable form. Customer
<br />shall not copy, modify, reverse engineer, decompile or disassemble any Software, nor shall Customer allow anyone else to do so.
<br />All right, title and interest in the Software, includine; all inventions, patents, copyrights, trade secrets and other intellectual
<br />property rights in the Software (collectively "ConfidentIal Information"), are and shall remain with Anacomp. Customer agrees to
<br />(and ensure that its employees, agents and independent contractors) hold the Confidential Information in strict confidence and not
<br />disclose the Confidential Information to third parties without Anacomp's prior written consent.
<br />13. GENERAL. Anacomp may act in reliance upon any instruction, instrument, or signature believed to be genuine and may
<br />assume that any employee of Customer giving any written notice, request, advice or instruction in connection with or relating to
<br />this Agreement has apparent authority and has been duly authorized to do so, until Anacomp receives written instructions from
<br />Customer indicating otherwise. Anacomp is not responsible for failure to fulfill its obligations under this Agreement due to causes
<br />beyond Anacomp's reasonable control. This Agreement is to be governed by and construed in accordance with the laws,
<br />excluding the conflicts laws, of the State in which the majority of the Services hereunder will be performed. This Agreement
<br />constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all previous
<br />communications, representations, understanding and agreements, oral or written. This Agreement may be amended only in a
<br />writing signed by both parties. If any' provision of this Ae;reement is held by a court of competent jurisdiction to be invalid or
<br />unenforceable, then that provision WIll be severed from thlS Agreement and any remaining provisions will continue in full force
<br />and effect. If Customer issues a purchase order, invoice or other instrument relating to the Services provided herein, then such
<br />purchase order, invoice or instrument shall be for Customer's internal purposes only, and any terms and conditions contained
<br />thereon, printed or written, shall not vary, add to or supersede the terms and conditions of this Agreement. All notices given
<br />hereunder shall be in writing and shall be sent by regular mail to the parties at the addresses herein or at such other addresses of
<br />which either party may give notice. Except for courier services, Anacomp may subcontract the performance of some or all of the
<br />Services to a third party only upon Customer's written consent, which consent will not be unreasonably withheld. This Agreement
<br />shall be binding upon and inure to the benefit of and be enforceable by the parties to this Agreement and their respective
<br />successors and permitted assigns. This Agreement may not be assigned by Customer without the prior written consent of
<br />Anacomp, which consent will not be unreasonably withheld.
<br />
<br />IN WIT
<br />
<br />ANACOMP,
<br />
<br />By:
<br />Name:
<br />Title:
<br />Date:
<br />Address:
<br />
<br />
<br />If-7-ur
<br />
<br />By:
<br />Name:
<br />Title:
<br />Date:
<br />Address:
<br />
<br />("CUSTOMER")
<br />
<br />Tho~~1r
<br />
<br />Manager, Information Services
<br />10-22-01
<br />20 Civic Center Plaza
<br />Santa Ana, CA 9270 I
<br />
<br />Mr. an Craun
<br />Sr Yice President , Sales
<br />
<br />3728 Phillips Highway #49
<br />Jacksonville, FL 32207
<br />
<br />20f2
<br />
|