HEREUNDER AND THAT THE TRANSITION SERVICES TO BE PROVIDED HEREUNDER ARE
FURNISHED "AS-IS," "WHERE-IS," AND WITH ALL FAULTS.
3.1.2
NOTWITHSTANDING SECTION 1.1.9, RECIPIENT SHALL NOT MAKE ANY CHANGE IN THE
OPERATING PARAMETERS AND SYSTEMS OF THE SOFTWARE, HARDWARE, INFORMATION OR
APPLICATIONS USED TO OPERATE THE SMR FACILITIES AS PART OF PROVIDER PAST
PRACTICES ("APPLICATION FOOTPRINT") OF ANY SMR FACILITY UNTIL AFTER THE
APPLICABLE TERMINATION DATE UNLESS THE APPLICABLE PROVIDER AGREES IN WRITING
THAT SUCH CHANGE SHALL NOT RESULT IN A DELAY OF THE COMPLETION OF THE
TRANSITION.
9
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3.1.3
THE PARTIES ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT OR AS SPECIFICALLY PROVIDED IN THE PURCHASE AGREEMENT, IN THE EVENT
THAT ANY APPLICATION FOOTPRINT IS TRANSFERRED TO RECIPIENT PURSUANT TO THIS
AGREEMENT, SUCH SOFTWARE, HARDWARE, INFORMATION OR APPLICATIONS WILL BE
TRANSFERRED "AS-IS, WHERE-IS" AND PROVIDERS MAKE NO REPRESENTATION OR WARRANTY
AS TO THE CONDITION OF SUCH SOFTWARE, HARDWARE, INFORMATION OR APPLICATION
EXCEPT AS AND TO THE EXTENT SET FORTH IN THIS AGREEMENT OR THE PURCHASE
AGREEMENT, NOR SHALL PROVIDERS HAVE ANY LIABILITY TO MAINTAIN SUCH APPLICATION
FOOTPRINT FOLLOWING THE CLOSING EXCEPT AND TO THE EXTENT AS REQUIRED BY THIS
AGREEMENT. FURTHERMORE, EXCEPT AS PROVIDED IN THIS AGREEMENT, PROVIDERS MAKE NO
REPRESENTATION OR WARRANTY OF TITLE OR OF ANY RIGHT TO USE ANY SUCH SOFTWARE,
HARDWARE OR APPLICATIONS, TO THE EXTENT THAT ANY OF THE FOREGOING CONTAIN THIRD
PARTY OR OPEN SOURCE CODE.
3.1.4
Determination of the suitability of any Products furnished hereunder for the use
contemplated by PBF is the sole responsibility of PBF, and AP will have no
responsibility in connection therewith. PBF acknowledges that there are hazards
associated with the use of the Products, that it understands such hazards, and
that it is the responsibility of PBF to warn and protect its employees and
others exposed to such hazards through PBF's use of the products. PBF shall hold
harmless, indemnify and defend AP and its Affiliates from and against any
liability incurred by PBF or any of its Affiliates because such warnings were
not made. PBF assumes all risk and liability for loss, damage, or injury to
persons or to property of PBF or others arising out of the presence or use of
the Products or from the failure to make such warnings.
3.1.5
AP MAKES NO REPRESENTATIONS OR WARRANTIES (INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR GUARANTEES OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS PROVIDED HEREUNDER. THE
PRODUCTS TO BE PROVIDED HEREUNDER ARE FURNISHED "AS-IS," "WHERE-IS," AND WITH
ALL FAULTS.
3.1.6
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL,
UNDER ANY CIRCUMSTANCES, BE LIABLE UNDER AND IN CONNECTION WITH THIS AGREEMENT,
INCLUDING FOR FAILURE TO PROVIDE ANY SERVICE OR SUPPLY ANY PRODUCTS HEREUNDER,
TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
BUSINESS INTERRUPTION LOSSES, INDIRECT LOSS OF PROFITS, LOSS OF GOODWILL,
DIMINUTION IN VALUE OR THIRD PARTY CLAIMS, WHETHER CAUSED