and validate
the modification or provide Licensor with written notice that the modification
did not pass Licensee's review, testing and validation process prior to the end
of the Qualification Period, then such modification shall be deemed to be
acceptable to Licensee and Licensor may implement such modification.
7.
Servicing. The obligations of Licensee and Licensor with respect to the
servicing of the Accounts are set forth in Exhibit D.
8.
Warranties and Limitation of Liability.
8.1
Warranties and Disclaimer.
(a)
Software and Services. Licensor represents and warrants that the Software
furnished hereunder shall operate in material conformance with the
Documentation; that, in general, the services provided hereunder shall be
[****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4
performed in a timely and professional manner by qualified professional
personnel; and that the services provided hereunder and the Software shall
conform to the standards generally observed in the industry for similar services
and Software. Licensee agrees that Licensor's sole obligation, and Licensee's
sole remedy, for any breach of this Section 8.1(a) shall be for Licensor to
modify the Software in accordance with Exhibit B and/or re-perform the
non-confirming services.
(b)
Compliance with Applicable Laws. Licensor warrants that the performance by
Licensor of the services hereunder shall be in compliance with all applicable
laws, rules and regulations.
8.2
EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, LICENSOR MAKES NO WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE,
DOCUMENTATION, TOOLS AND ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED
UNDER THIS AGREEMENT. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONTINUOUS
OPERATION, QUALITY, AND ACCURACY.
8.3 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE FURNISHING, PERFORMANCE
OR USE OF THE SOFTWARE, TOOLS, DOCUMENTATION OR ANY SERVICES PERFORMED
HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT,
INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. LICENSOR'S LIABILITY TO LICENSEE UNDER THIS AGREEMENT WILL NOT, IN
ANY EVENT, EXCEED [****]. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS
SECTION 8.3 SHALL NOT APPLY TO ANY BREACH OF SECTION 4 OR SECTION 10 BY EITHER
PARTY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY, OR EITHER PARTY'S
INDEMNIFICATION OBLIGATIONS. THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS
UNDER THIS AGREEMENT BETWEEN LICENSEE AND LICENSOR. LICENSOR'S PRICING REFLECTS
THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. THE FOREGOING LIMITATIONS
WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.4 Third Party Software. To the extent any third-party software is incorporated
in or required by the Software, Licensor shall be responsible for obtaining
licenses for such software for Licensee's benefit and use.
[****] = CERTAIN