XCARX xxx'x xiability for damages to Client for any cause whatsoever, regardless of form of action, including negligence, shall not exceed an amount equal to the price of products and Services purchased by Client during the twelve month period preceding the event which caused the damages or injury; provided, however, that this limitation shall not apply to damages to Client for personal injuries or destruction of tangible personal property proximately caused by the negligence of XCarx.xxx xx damages caused by gross negligence or willful misconduct.
XCARX. XXX XXXS NOT WARRANT THAT THE USE OF THE XCARX.XXX XXXTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET CLIENT'S REQUIREMENTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, XCARX.XXX XXXS NOT MAKE ANY WARRANTY AS TO THE XCARX.XXX XXXTWARE OR THE SERVICES PROVIDED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM USE OF THE XCARX.XXX XXXTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE XCARX.XXX XXXTWARE IS USED AND THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE INTERNET OR USE OF INFORMATION IN CONNECTION WITH THE SOFTWARE.
XCARX xxx xxxll not obtain any right, title to and/or interest in content, including but not limited to text, multimedia images (graphics, audio and video), software and other data (collectively "Content") provided by Client and installed by XCarx.xxx xx Client on the Server or developed for Client at Client's expense; however, XCarx.xxx xxxll retain title to and all rights in all other intellectual property including, but not limited to, any know-how related to XCare.net-provided products or services such as the hardware, software or any other server technology.
XCARX xxx xxxes no warranties of any kind with respect to Services and Products provided under this Agreement. XCARX.XXX XXXCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OTHER THAN THOSE EXPRESS WRITTEN PERFORMANCE AGREEMENTS MUTUALLY AGREED UPON. In any instance involving performance or nonperformance of Services and Products provided hereunder, Client's sole remedy shall be (a) in the case of Services, refund of a prorata portion of the price paid for Services which were not provided.
XCARX xxx xxxl indemnify and hold Client harmless against any claim or demand by any third party that any hardware or software provided to Client hereunder, infringes any United States copyright or trade secret. Except for damages incurred by Xcarx.xxx xxxsed by (a) proprietary rights infringement claims as provided for above, or (b) damages for personal injuries or destruction of tangible property proximately caused by Xcarx.xxx'x xross negligence or willful misconduct, Client agrees to indemnify and hold Xcarx.xxx xxxmless against any claim or demand by any third party due to or arising out of the use by Client of Services and related products provided hereunder.
XCARX xxx Xxxrage Server Response Times. Should the response times stipulated above not be met for a minimum of 30 minutes per day for FIVE consecutive days, then XCarx.xxx xxxl make all necessary additions/modification to the equipment configuration over the next calendar month to bring the response times within their stipulated levels again.
XCARX xxx xxxresents and warrants that all Client Software and XCarx.xxx Xxxtware will process dates correctly prior to, during and after the calendar year 2000. This shall include, but not be limited to, century recognition, calculations that accommodate the same century and multi-century formulas and date values, and interface values that reflect the century. In the event that Client becomes aware that the Client Software or XCarx.xxx Xxxtware will not or does not process data containing any dates subsequent to the year 1999 correctly, Client shall immediately notify XCarx.xxx xx that fact and XCarx.xxx xxxees to correct or replace the Client Software or XCarx.xxx Xxxtware to eliminate such processing problem in accordance with XCarx.xxx'x xtandard policies, which are available upon request. The foregoing is Client's sole and exclusive remedy for breach of warranty. The warranty set forth above is made to and for Client's benefit only. The warranty will apply only if no modification, alteration or addition has been made to the Client Software or XCarx.xxx Xxxtware by persons other than XCarx.xxx xx XCarx.xxx'x authorized representative.
XCARX xxx'x xole responsibility under this Section 5.1 shall be to take reasonable precautions and will apply testing procedures to assure that the Vendor Systems (EMR and other) and the Developed Systems (XCarx.xxx) are free from material reproducible programming errors and defects in workmanship and materials, and that the Developed Systems will conform in all material respect to the specifications therefore. If material reproducible programming errors are discovered in the Developed Systems, XCarx.xxx xxxll promptly remedy them at no additional expense to Customer. XCarx.xxx xxxl obtain a substantially similar warranty from the Vendor Systems and if material reproducible programming errors are discovered in the Vendor Systems, XCarx.xxx xxx System vendor will promptly remedy them at no additional expense to Customer. All warranty claims not made in writing or not received by XCarx.xxx xxxhin the Warranty Period shall be deemed waived. XCarx.xxx'x xarranty obligations are solely for the benefit of Client, who has no authority to extend or transfer this warranty to any other person or entity.
XCARX. XXX XXXS NOT WARRANT THAT THE USE OF THE CLIENT SOFTWARE AND THE XCARX.XXX XXXTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET ANY OF CLIENT'S REQUIREMENTS OTHER THAN THE EXPRESS WRITTEN REQUIREMENTS SET FORTH IN ATTACHMENT 5 - LIST OF ACCEPTANCE CRITERIA. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, XCARX.XXX XXXS NOT MAKE ANY WARRANTY AS TO THE XCARX.XXX XXXTWARE OR THE SERVICES PROVIDED HEREUNDER
XCARX xxx xxxll have no liability for any claim of infringement based on (i) use by Client of other than the current update of the XCarx.xxx Xxxtware or Client Software if the infringement would have been avoided by uses of the current update; (ii) modifications, adaptations or changes to the XCarx.xxx Xxxtware or Client Software not made by XCarx.xxx; (xii) the combination or use of the materials furnished hereunder with materials not furnished by XCarx.xxx if such infringement would have been avoided by use of the XCarx.xxx xxxerials alone; or (iv) use or incorporation of Content or Modified Content. In the event the XCarx.xxx Software is held to, or XCarx.xxx xxxieves is likely to be held to, infringe the intellectual property rights of a third party, XCarx.xxx xxxll have the right at its sole option and expense to (i) substitute or modify the XCarx.xxx Xxxtware or Client Software so that it is noninfringing and qualitatively and functionally equivalent to the XCarx.xxx Xxxtware or Client Software; (ii) obtain for Client a license to continue using the XCarx.xxx Xxxtware or Client Software; or if neither (i) nor (ii) is commercially reasonable, XCarx.xxx shall have the fight to terminate this Agreement immediately upon written notice to Client, and XCarx.xxx xxxll make payment to Client of an amount equal to the fees paid for the XCarx.xxx Xxxtware or Client Software, pro-rated over a three (3) year period commencing on the Effective Date. This Section 6.1 sets forth Client's sole and exclusive remedy and XCarx.xxx'x xole liability for intellectual property infringement by XCarx.xxx.
