A to the Reseller Agreement.
3.
WARRANTIES AND LIMITATIONS OF LIABILITY
3.1.
Limited Maintenance Services Warranty.
Vendor warrants, for a
period of ninety (90) days following the performance of the applicable
maintenance service, that such maintenance services will be performed in a
professional manner and in a manner that is at least equal to applicable
industry standards prevailing at the time of performance.
Vendor's entire
liability and Konica Minolta's exclusive remedy under this limited warranty is,
at Vendor's option, either (a) return of the Software Maintenance Fees paid by
Konica Minolta with respect to the annual maintenance period during which such
maintenance services were performed; or (b) re-performance of such maintenance
services in a manner that conforms with the foregoing limited warranty.
Any
maintenance services that are re-performed will be warranted in accordance with
the terms and conditions of this Section for the remainder of the original
warranty period or thirty (30) days, whichever is longer.
3.2.
Warranty Disclaimer and Limitation of Liability.
KONICA MINOLTA
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE
RESELLER AGREEMENT, VENDOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY TO
CUSTOMER OR KONICA MINOLTA REGARDING THE MAINTENANCE SERVICES.
WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, VENDOR DISCLAIMS ANY IMPLIED WARRANTY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY WITH RESPECT TO
MERCHANTABILITY OF THE MAINTENANCE SERVICES OR FITNESS OF THE MAINTENANCE
SERVICES FOR A PARTICULAR PURPOSE. THE PARTIES WILL NOT BE LIABLE FOR EXEMPLARY,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHICH ARISE DIRECTLY OR
INDIRECTLY OUT OF THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE THE
MAINTENANCE SERVICES, WHETHER SUCH DAMAGES ARE BASED UPON CONTRACT, TORT,
INTENTIONAL CONDUCT, EQUITY OR PURSUANT TO SOME OTHER THEORY, INCLUDING, WITHOUT
LIMITATION, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY, WHETHER THE
POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN TO OR WAS FORESEEABLE BY VENDOR OR
KONICA MINOLTA AND WHETHER SUCH DAMAGES ARE ASSERTED BY VENDOR, KONICA MINOLTA,
A CUSTOMER OR SOME OTHER PARTY.
[**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS
AGREEMENT PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934**]
3.3.
THE PARTIES' MAXIMUM AGGREGATE LIABILITY UNDER ANY LEGAL THEORY
(INCLUDING ITS OWN NEGLIGENCE) FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF
THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE THE MAINTENANCE SERVICES WILL
NOT IN ANY EVENT EXCEED THE LESSER OF (a) THE ACTUAL DAMAGES SUFFERED BY THE
AGGRIEVED PARTY OR (b) AN AMOUNT EQUAL TO THE SOFTWARE MAINTENANCE FEES PAID BY
KONICA MINOLTA TO VENDOR WITH RESPECT TO THE ANNUAL PERIOD DURING WHICH THE
APPLICABLE CLAIM FOR DAMAGES FIRST ACCRUED.
3.4.
KONICA MINOLTA ACKNOWLEDGES THAT THE PRICING OF THE MAINTENANCE
SERVICES REFLECTS THE INTENT OF THE PARTIES TO LIMIT VENDOR'S LIABILITY AS
PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE INTENDED TO
LIMIT VENDOR'S LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4.
TERM AND TERMINATION
4.1.
Term.
This Agreement shall take effect on the Effective Date
and