1. Hosting and Network Services
Client specifically acknowledges that, True HR hosting and network services are provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce circumstances in which Client’s use of the Software and/or connections to telecommunication networks (or portions thereof) may be impaired or disrupted. Although True HR will use commercially reasonable efforts to take any actions it deems appropriate to remedy and avoid such circumstances, True HR cannot control such circumstances and cannot guarantee that they will not occur. Accordingly True HR will have no liability whatsoever resulting from or related to such circumstances, unless due to True HR’s gross negligence or willful misconduct.
2. Representations and Warranties.
2.1 Mutual. Each party represents and warrants to the other that on the date hereof it: (a) has all necessary corporate power and authority to enter into and deliver this Agreement and to perform its obligations hereunder; (b) all action on the part of each party necessary for the authorization, entering into and delivery of this Agreement and the performance of all obligations of that party hereunder have been taken or will be taken prior to the signing of this Agreement; and (c) each party will comply with all applicable laws in connection with its performance of obligations and exercise of rights under this Agreement.
2.2 Limited Performance Warranty- True HR shall, as its sole liability and Client’s sole remedy, diligently remedy any deficiencies that cause the Software to not conform to the foregoing warranty. If True HR determines that it is unable to remedy the deficiency, True HR will refund to Client the fees actually paid by Client to True HR for the defective Software and, in such instance, Client’s right to use that particular Software will terminate. True HR will not be liable to the extent that any breach of the foregoing warranties are caused by (a) third-party components (including in combination with the Software) not provided by True HR or any open source components or freeware included within the Software; (b) modifications to the Software not provided by True HR; or (c) unauthorized use of the Software (collectively, “Exclusions”). True HR does not warrant that use of the Software will be error-free or uninterrupted.
2.3 Disclaimer. THE SOFTWARE, PROFESSIONAL SERVICES, AND DELIVERABLES ARE PROVIDED “AS IS” AND True HR HEREBY DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS, NON-INFRINGEMENT, TITLE, ACCURACY, AND COURSE OF DEALING. ADDITIONALLY, CLIENT ACKNOWLEDGES THAT THE SOFTWARE CONTAINS CERTAIN FREEWARE AND OPEN SOURCE COMPONENTS WHICH ARE GENERALLY AVAILABLE AND True HR ASSUMES NO RESPONSIBILITY OR LIABILITY OF ANY KIND WITH RESPECT TO SUCH COMPONENTS.
3. Limitation on Liability.
IN NO EVENT SHALL True HR OR ITS SUPPLIERS BE LIABLE TO CLIENT, USERS OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF True HR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF True HR OR ITS SUPPLIERS TO CLIENT, USERS OR ANY THIRD PARTY EXCEED THE FEES PAID BY CLIENT HEREUNDER.
4. Maintenance and Support Services.
Upon payment by Client to True HR of maintenance and support services fees for each Software licensed hereunder as such fees are set forth on the Service Contract, True HR will begin providing Maintenance and Support in accordance with the terms and conditions set forth in the applicable Maintenance and Support Clause made available in Service Contract.
5.1 General: Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, products and services (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software, technology and trade secrets and customer information, to the extent identified as confidential or proprietary, and the terms and conditions of this Agreement. Each party agrees that it will not use in any way, for its own account or the account of any third party, nor disclose to any third party (except as required by law or to the disclosing party’s attorneys, accountants and other advisors as reasonably necessary and subject to the confidentiality provisions hereof), any of the other party’s Confidential Information, whether received prior to or following the Effective Date, and will take reasonable precautions to protect the confidentiality of Confidential Information.
5.2 Exclusion: Information will not be deemed Confidential Information hereunder if such information: (i) is rightfully known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality of the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
6. Miscellaneous. The parties are independent contractors with respect to each other. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the California excluding its conflicts of law principles. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the courts located in California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non convenient or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. A person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing. This Agreement includes any applicable Service Contracts and other terms and conditions incorporated herein by reference. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications. The terms on any service contract or similar document submitted by Client to True HR will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its main corporate headquarters.