ES&S Software. ES&S warrants for a one (1) year period for the ES&S Software (the “Warranty Period”) it will repair any component of the ES&S Software which, while under normal use and service: fails to perform in accordance with its Documentation in all material respects. The Warranty Period will commence upon installation. If a defect or malfunction occurs in the ES&S Software while it is under normal use and service, Customer shall promptly notify ES&S, and ES&S or its authorized representatives shall use reasonable efforts to restore the Software to perform in accordance with its Documentation as soon as practicable. ES&S or its authorized representatives shall restore ES&S Software at a location as determined by ES&S in its sole discretion. If a defect or malfunction occurs in any ES&S Software as a result of (1) repairs, changes, modifications or alterations not authorized or approved by ES&S, (2) accident, theft, vandalism, neglect, abuse or use that is not in accordance with instructions or specifications furnished by ES&S or (3) causes beyond the reasonable control of ES&S or Customer, including acts of God, fire, flooding, riots, acts of war, terrorism or insurrection, government acts or orders; epidemics, pandemics or outbreak of communicable disease; quarantines; national or regional emergencies, labor disputes, transportation delays, governmental regulations, rodent infestation, and utility or communication interruptions, Customer shall pay ES&S for any maintenance services at ES&S’ then-current rates, as well as for the cost of all parts used in connection with the performance of such maintenance services. Customer shall have access to ES&S Help Desk Support during the Warranty Periods. ES&S reserves that right to use third parties approved by ES&S to perform the warranty services hereunder.
ES&S Software. ES&S warrants that for 90 days after the Acceptance Date (the “Warranty Period”), it will repair or replace any of the ES&S Software which, while under normal use and service: (i) fails to perform in accordance with its Documentation and in accordance with official preprinted marketing materials, proposals, or quote published by ES&S in all material respects, or (ii) is defective in material or workmanship. Any repaired or replaced item of ES&S Software shall be warranted only for the unexpired term of the original Warranty Period. All replaced components of the ES&S Software will become the property of ES&S. This warranty is effective provided that (I) Customer promptly notifies ES&S of the failure of performance or defect and is otherwise in compliance with its obligations hereunder, (II) the ES&S Software to be repaired or replaced has not been repaired, changed, modified or altered except as authorized or approved by ES&S, (III) the ES&S Software to be repaired or replaced is not damaged due to accident, theft, vandalism, neglect, abuse, use which is not in accordance with instructions or specifications furnished by ES&S or causes beyond the reasonable control of ES&S or Customer, including natural disaster, fire, flood, unusually severe weather or Acts of God, (IV) Customer has Timely Installed and is using all Updates (if any), provided to it by ES&S, (V) the ES&S Software is used with hardware and software meeting specifications supplied by ES&S, and (VI) the data and/or the database structure used in conjunction with the ES&S Software is not manipulated using application software other than the ES&S Software unless Customer obtains ES&S’ prior written approval of such manipulation or such modification, change or alteration is performed by Customer temporarily during an emergency situation and then only for such period of time as an emergency condition exists and it is not reasonably practicable for Customer to obtain ES&S’ prior authorization or approval in writing. Upon expiration of the warranty, Customer shall be entitled to the Maintenance Services set forth in Exhibit C to this Agreement in accordance with the terms and conditions of Exhibit C.
