as a result of
such early termination by such Recipient (but not, for the avoidance of doubt,
employee severance costs), including early termination fees and other costs
incurred in order to terminate or reduce the level of services provided by third
parties under Contracts with a Provider or any of its Affiliates, which services
are affected by such early termination, such reimbursement to be due and payable
within the time periods and otherwise according to the terms set forth in
Section 1(b) hereof.
3. Manner of Providing Transition Services; Limitation on Liability;
Indemnification.
(a) Nothing in this Agreement shall require Providers to (i) render Transition
Services in a manner or method different from the manner or method utilized by
Providers in performing the Transition Services hereunder; (ii) make any change
or addition that would require (to be determined in Air Products' sole
discretion) any expenditure of additional capital, any expansion or modification
to facilities, or any acquisition of additional equipment or software,
(iii) make any changes to Providers' applications to support Recipients'
business processes or otherwise or (iv) make any efforts, in each case beyond
commercially reasonable efforts, to provide the Transition Services hereunder.
Nothing in this Agreement shall impose a standard of care equal to or higher
than that which may be applicable to commercial providers of similar services.
THE PARTIES ACKNOWLEDGE THAT EACH PROVIDER 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
TRANSITION SERVICES PROVIDED HEREUNDER AND THAT THE TRANSITION SERVICES TO BE
PROVIDED HEREUNDER ARE FURNISHED "AS-IS," "WHERE-IS," AND WITH ALL FAULTS. THE
RECIPIENTS SHALL NOT MAKE ANY CHANGE IN THEIR EXISTING "APPLICATION FOOTPRINT"
UNTIL AFTER THE TERMINATION DATE UNLESS AIR PRODUCTS AGREES IN WRITING THAT SUCH
CHANGE SHALL NOT RESULT IN A DELAY OF THE COMPLETION OF THE TRANSITION.
(b)
THE PARTIES ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN THE SEPARATION AGREEMENT, IN THE EVENT THAT ANY SOFTWARE, HARDWARE,
INFORMATION OR APPLICATIONS USED TO PROVIDE TRANSITION SERVICES ARE TRANSFERRED
TO RECIPIENTS 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 THE
9
SEPARATION AGREEMENT, NOR SHALL PROVIDERS HAVE ANY LIABILITY TO MAINTAIN SUCH
SOFTWARE, HARDWARE, INFORMATION OR APPLICATION FOLLOWING THE CLOSING EXCEPT AND
TO THE EXTENT AS REQUIRED BY THIS AGREEMENT. FURTHERMORE, 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.
(c) Determination of the suitability of any Transition Services furnished
hereunder for the use contemplated by Recipients is the sole responsibility of
Recipients, and Providers will have no responsibility in connection therewith.
The Recipients assume all risk and liability for loss, damage or