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continue to pay the Fee, as originally set forth in the Scope of
<br />Work.
<br />4. Independent Contractor Relationship.
<br />Company's relationship with Customer will be that of an
<br />independent Contractor and nothing in this Agreement should be
<br />construed to create a partnership, joint venture, or employer -
<br />employee relationship. Customer is not an agent of Company
<br />and is not authorized to make any representation, contract, or
<br />commitment on behalf of Company, or to bind Company in any
<br />way. Company is not an agent of Customer and is not authorized
<br />to make any representation, contract, or commitment on behalf
<br />of Customer, or to bind Customer in any way. Company will not
<br />be entitled to any of the benefits, which Customer may make
<br />available to its employees, such as group insurance, profit sharing
<br />or retirement benefits.
<br />5. Proprietary Information.
<br />During the Term of this Agreement and after the termination of
<br />this Agreement, the parties will take all steps reasonably
<br />necessary to hold the other party's Proprietary Information in
<br />confidence, will not use the other party's Proprietary Information
<br />in any manner or for any purpose not expressly set forth in this
<br />Agreement, and will not disclose any such Proprietary
<br />Information to any third party without the disclosing party's
<br />express prior written consent. "Proprietary Information"
<br />includes, but is not limited to (a) trade secrets, inventions, ideas,
<br />processes, formulas, source and object codes, data, other works
<br />of authorship, know-how, improvements, discoveries,
<br />developments, designs and techniques; and (b) information
<br />regarding plans for research, development, new products,
<br />marketing and selling, budgets and unpublished financial
<br />statements, licenses, prices and costs, suppliers and customers;
<br />and (c) information regarding the skills and compensation of
<br />employees . Nothing will be considered to be Proprietary
<br />Information if (1) it is readily available to the public other than by
<br />a breach of this Agreement; (2) it has been rightfully received by
<br />the receiving party from a third party without confidential
<br />limitations; (3) it has been independently developed by the
<br />receiving party without reference to or use of the disclosing
<br />party's Proprietary Information; or (4) it was rightfully known to
<br />the receiving party prior to its first receipt from the disclosing
<br />party. The receiving party shall be entitled to disclose the
<br />disclosing party's Proprietary Information if required by law or a
<br />judicial order; provided that the receiving party first provides
<br />prompt notire of the required disclosure to the disclosing party,
<br />and complies with any protective or similar order obtained by the
<br />disclosing party limiting the required disclosure.
<br />6. Representations and Warranties; Warranty Disclaimer.
<br />6.1 Customer represents and warrants that (a) it has full right
<br />and power to enter into and perform its obligations under this
<br />Agreement, and (b) it will take all reasonable precautions to
<br />prevent injury to any persons (including employees of Company)
<br />or damage to Company's property during the Term of this
<br />Agreement.
<br />6.2 Company represents and warrants that (a) it has full right and
<br />power to enter into and perform its obligations under this
<br />Agreement, and (b) it will take all reasonable precautions to
<br />prevent injury to any persons (including employees of Customer)
<br />or damage to Customer's property during the Term of this
<br />Agreement.
<br />6.3 Company warrants that any Hardware provided pursuant to
<br />this Agreement shall operate in good working order for a period
<br />of one (1) year from Contract Execution Date, as that term is
<br />defined in Exhibit A of the PremierPro Support and Maintenance
<br />Agreement. Any changes or modifications to the Hardware by
<br />any person other than Company, or any combination of the
<br />Hardware with other materials by any person other than
<br />Company, voids this limited warranty. This limited warranty is
<br />also void if failure of the Hardware results from transportation,
<br />neglect, misuse, or misapplication of the Hardware by any
<br />person other than Company; from any accident beyond
<br />Company's control; from use of the Hardware not in accordance
<br />with this Agreement or documentation provided in connection
<br />with the Hardware; or from Customer's failure to provide a
<br />suitable environment for the Hardware.
<br />6.4 The express warranties in Sections 6.2 and 6.3 above are
<br />lieu of all other warranties, express, implied or statutory,
<br />arising from or related to this Agreement and any hardware
<br />provided to Customer hereunder, including, but not limited to,
<br />any implied warranties of merchantability, fitness for a
<br />particular purpose, title, and non -infringement of third party
<br />rights. Customer acknowledges that it has relied on no
<br />warranties other than the express warranties in Sections 6.2
<br />and 6.3 of this Agreement. Except for the express warranty in
<br />Section 6.3 of this Agreement, Company provides the Services
<br />and Hardware to Customer "as is" and "as available," and
<br />Company does not warrant that the Services or Hardware will
<br />be uninterrupted or error free, and Company hereby disclaims
<br />any and all liability in connection therewith. This warranty
<br />disclaimer is made regardless of whether Company knows or
<br />has reason to know of Customer's particular needs. No
<br />Company employee, agent, dealer, or distributor of Company is
<br />authorized to modify this limited warranty, or make any
<br />additional warranties, whether orally, in writing, or otherwise.
<br />This Section 6.4 shall be enforceable to the fullest extent
<br />permitted by applicable law.
<br />7. Customer Remedies; Limitation of Liability.
<br />7.1 If Customer finds what it reasonably believes to be a failure
<br />of the Hardware to conform to the limited warranty in Section
<br />6.3 of this Agreement, and provides Company with a written
<br />report that describes such failure in sufficient detail to enable
<br />Company to reproduce or understand such failure, Company
<br />and its suppliers' entire liability and Customer's exclusive
<br />remedy for breach of the limited warranty in Section 6.3
<br />regarding the Hardware, is for Company to use commercially -
<br />reasonable efforts to correct or provide a workaround for the
<br />failure at no additional charge to Customer. If, in Company's
<br />sole discretion, it provides replacement Hardware, the
<br />replacement Hardware will be warranted in accordance with
<br />the provisions of this Agreement for the remainder of the
<br />original warranty period or thirty (30) days, whichever is longer.
<br />Outside the United States, neither these remedies nor any
<br />
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