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6. Support Services:
<br />This Agreement does not include, and the fee set forth in
<br />Exhibit A to this Agreement does not cover, support services
<br />relating to the following items:
<br />a) Any support or maintenance services relating to
<br />Products that have been altered or modified by
<br />anyone other than Company or a third party on
<br />Company's behalf.
<br />b) Hardware replacement or software errors as a result
<br />of causes beyond Company's reasonable control.
<br />c) Version upgrades of host or backend database
<br />software.
<br />d) Direct support for the required application program
<br />interface either purchased or procured as part of the
<br />integrated solution.
<br />e) Enhancements, replacements, or modifications to
<br />current Product versions performed at the Customer's
<br />request and not intended to resolve a product failure.
<br />f) Services, support, and configuration of passive fail -
<br />over server (unless expressly purchased and listed in
<br />Exhibit A to this Agreement).
<br />Upon Customer's request, Company may, in its discretion,
<br />agree to provide one or more of the above - listed services in
<br />this Section 6, at Company's then - current published hourly
<br />rates or for a fixed fee. If Customer's payments under this
<br />Agreement for PremierPro Support provided under Section
<br />5 are current upon Customer's request for services
<br />described in this Section 6, and Company agrees to provide
<br />services described in this Section 6, Customer will receive
<br />preferred rates for both standard and after -hours services.
<br />7. Hardware Maintenance:
<br />Company, at its sole discretion, may use new or refurbished
<br />parts for the repair of any Company - provided hardware in
<br />connection with performance of PremierPro Support or
<br />services provided under Section 6 of this Agreement.
<br />8. Customer Preventative Maintenance:
<br />Customer shall perform all necessary preventative
<br />maintenance as outlined in Company's Administrative
<br />Guide, which may be updated from time to time by
<br />Company. Notwithstanding anything to the contrary in this
<br />Agreement, if Customer's failure to perform the required
<br />preventative maintenance is determined, in Company's
<br />reasonable discretion, to be the cause of any support call,
<br />Customer will be billed for the support call and the services
<br />required to service the Product, at Company's then - current
<br />hourly rate.
<br />9. Response Times:
<br />Non - emergency support calls will be responded to within
<br />one (1) business day, however most calls are handled within
<br />two (2) hours of receipt. For PremierPro Support calls made
<br />during non - business hours, an answering service takes all
<br />support calls. Calls that are placed as an emergency (system
<br />down or inoperable) will be dispatched to the on -call
<br />support staff for response within four (4) hours. Non -
<br />emergency calls will be directed to support personnel, and
<br />will be responded to the next business day.
<br />10. Customer Contacts:
<br />Three (3) customer support contacts are allowed.
<br />Additional contacts may be added at any time for an
<br />additional $500.00 per contact per Initial Term or then -
<br />current Renewal Term. Only Customer's customer support
<br />contacts may contact Company for support services.
<br />Customer's customer support contacts are as set forth on
<br />Exhibit A to this Agreement. Customer may change its
<br />customer support contacts upon thirty (30) days' written
<br />notice to Company.
<br />11. Representations and Warranties; Warranty
<br />Disclaimer:
<br />TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
<br />LAW, THE PREMIERPRO SUPPORT SERVICES AND OTHER
<br />SERVICES PROVIDED HEREUNDER, AND ALL ASSOCIATED
<br />PRODUCTS, ARE PROVIDED TO CUSTOMER "AS IS" AND AS
<br />AVAILABLE, AND COMPANY AND ITS SUPPLIERS DISCLAIM
<br />ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED OR
<br />STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED
<br />WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
<br />PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF
<br />THIRD PARTY RIGHTS. This warranty disclaimer is made
<br />regardless of whether Company knows or had a reason to
<br />know of Customer's particular needs. No employee, agent,
<br />dealer or distributor of Company is authorized to modify
<br />this warranty disclaimer, or to make any warranties,
<br />whether orally, in writing, or otherwise.
<br />12. Limitation of Liability:
<br />TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
<br />LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY
<br />CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY,
<br />SPECIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT
<br />LIMITED TO ANY LOST DATA AND LOST PROFITS, ARISING
<br />FROM OR RELATING TO THIS AGREEMENT, THE PRODUCTS,
<br />AND /OR THE PREMIERPRO SUPPORT OR OTHER SERVICES
<br />PROVIDED OR CONTEMPLATED UNDER THIS AGREEMENT.
<br />COMPANY'S TOTAL CUMULATIVE LIABILITY IN
<br />CONNECTION WITH THIS AGREEMENT, THE PRODUCTS,
<br />AND THE PREMIERPRO SUPPORT OR OTHER SERVICES
<br />PROVIDED OR CONTEMPLATED UNDER THIS AGREEMENT,
<br />WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL
<br />NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO
<br />COMPANY HEREUNDER IN THE TWELVE- (12 -) MONTH
<br />PERIOD IMMEDIATELY PRECEDING THE ACTION THAT GAVE
<br />RISE TO THE CLAIM. CUSTOMER ACKNOWLEDGES THAT
<br />THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN
<br />THIS AGREEMENT AND THAT COMPANY WOULD NOT
<br />ENTER INTO THIS AGREEMENT WITHOUT THESE
<br />LIMITATIONS ON ITS LIABILITY.
<br />13. Downtime Credit:
<br />
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