ELSEWHERE IN THIS SECTION 10.1, THE OBLIGATION TO
RE-PERFORM IS HAWAIIAN TELCOM'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS
WARRANTY.
(B)
SUPPORT STANDARDS.
SUBJECT TO HAWAIIAN
TELCOM'S OBLIGATION TO PROCURE MAINTENANCE AND SUPPORT FOR IN-SCOPE APPLICATIONS
IN ACCORDANCE WITH THIS AGREEMENT, AND TO THE EXTENT MAINTENANCE AND SUPPORT
ACTIVITIES ARE SERVICES, ACCENTURE SHALL PERFORM MAINTENANCE ON ANY IN-SCOPE
APPLICATIONS IN ACCORDANCE WITH THE APPLICABLE SOFTWARE SUPPLIER'S WRITTEN
DOCUMENTATION AND RECOMMENDATIONS PROVIDED IN WRITING TO ACCENTURE PRIOR TO
EXECUTION OF THE APPLICABLE SOW OR WORK ORDER, OR PROMPTLY AFTER IT IS MADE
AVAILABLE TO HAWAIIAN TELCOM, AS THE CASE MAY BE.
(C)
DELIVERABLES.
(I)
ACCENTURE WARRANTS THAT ITS
MODIFICATIONS TO, AND DEVELOPMENT OF, SYSTEM DELIVERABLES THAT ARE SOFTWARE
SHALL COMPLY WITH THEIR RESPECTIVE SPECIFICATIONS IN ALL MATERIAL RESPECTS AND
WILL NOT CAUSE SEVERITY LEVEL 1 OR SEVERITY LEVEL 2 PROBLEMS, DURING THE
APPLICATION WARRANTY PERIOD.
29
(II)
RESERVED.
(III)
SUBJECT TO SECTION 10.1(C)(IV) AND (V)
BELOW, AS HAWAIIAN TELCOM'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO BREACH OF
THE WARRANTY IN SECTION 10.1(C), ACCENTURE SHALL PROMPTLY CORRECT ANY FAILURES
TO COMPLY WITH THE WARRANTY IN SECTION 10.1(C)(I) (EACH A "WARRANTY DEFECT") IN
A PARTICULAR SYSTEM DELIVERABLE, REPORTED TO ACCENTURE IN WRITING DURING THE
APPLICATION WARRANTY PERIOD FOR SUCH SYSTEM DELIVERABLE, AT NO ADDITIONAL COST
TO HAWAIIAN TELCOM.
(IV)
IF, AFTER USING REASONABLE EFFORTS, ACCENTURE
IS UNABLE TO CORRECT A WARRANTY DEFECT UNDER WARRANTY WITHIN THE WARRANTY REPAIR
TIME, HAWAIIAN TELCOM, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO
TERMINATE ACCENTURE'S OBLIGATION TO CORRECT SUCH WARRANTY DEFECT AND/OR SEEK
DIRECT DAMAGES AS A RESULT OF SUCH BREACH, SUBJECT TO THE LIMITATIONS ON
LIABILITY SET FORTH IN SECTION 10.1(C)(VI) AND ARTICLE 15.
(V)
NOTWITHSTANDING THE FOREGOING, ACCENTURE
WILL BE EXCUSED FROM ITS OBLIGATIONS IN SECTION 10.1(C)(III) AND ANY LIABILITY
FOR DIRECT DAMAGES IN SECTION 10.1(C)(IV) TO THE EXTENT A WARRANTY DEFECT IS
CAUSED BY:
(A) ANY PERSON (OTHER THAN ACCENTURE PERSONNEL) MAKING ANY REVISIONS
OR MODIFICATIONS TO THE SYSTEM DELIVERABLE AFTER ITS PROVISION TO HAWAIIAN
TELCOM; (B) HAWAIIAN TELCOM'S MISUSE OR OPERATION OF THE SYSTEM DELIVERABLE
OTHER THAN IN ACCORDANCE WITH APPLICABLE DOCUMENTATION OR DESIGN IDENTIFIED IN
THE APPLICABLE SOW; OR (C) USE OF THE APPLICABLE SYSTEM DELIVERABLE ON HARDWARE
THAT DOES NOT MEET ANY MINIMUM HARDWARE REQUIREMENTS IDENTIFIED IN THE SOW OR
WORK ORDER, IF ANY (UNLESS SUCH HARDWARE IS OTHERWISE RECOMMENDED, SUPPLIED OR
APPROVED BY ACCENTURE).
(VI)
ACCENTURE'S LIABILITY FOR DIRECT DAMAGES UNDER
SECTION 10.1(C) SHALL BE LIMITED AS PROVIDED FOR IN EXHIBIT Q (OTHER TERMS).
(D)
ABSENCE OF LITIGATION.
EACH PARTY
REPRESENTS AND WARRANTS THAT AS OF THE EFFECTIVE DATE AND TO ITS ACTUAL
KNOWLEDGE NO CLAIM, LITIGATION, PROCEEDING, ARBITRATION, INVESTIGATION OR
MATERIAL CONTROVERSY IS PENDING, HAS BEEN THREATENED OR IS CONTEMPLATED AGAINST
OR BY IT WHICH WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE SUCH PARTY'S ABILITY
TO ENTER INTO THIS AGREEMENT OR PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
(E)
AUTHORIZATION AND OTHER CONTRACTS.
EACH
PARTY REPRESENTS AND WARRANTS TO THE OTHER THAT:
(I)
IT