Common use of Performance Exclusions Clause in Contracts

Performance Exclusions. 6.1 Notwithstanding anything to the contrary in this SONIFI Limited Warranty, SONIFI has no obligation to perform any work, warranty service, Update, support, repair, replacement or maintenance associated with Equipment (including Headend Equipment and In-Room Equipment), Documentation and Licensed Software, to the extent that SONIFI determines that a problem or failure is caused by: (a) the acts or omissions of Company or its owners, partners, members, directors, officers, employees, agents, contractors, affiliates, guests or invitees, regardless of whether such acts or omissions are intentional, reckless, or negligent; (b) vandalism, theft or willful or negligent acts or omissions of Company, or any of its owners, partners, members, directors, officers, employees, agents, contractors, affiliates, guests or invitees; (c) Company’s failure to perform its obligations hereunder, including but not limited to following the site specifications in the SOW; (d) Premises renovations; (e) acts or omissions of third parties (other than SONIFI contractors or sub-contractors performing work under the Agreement or on SONIFI’s behalf); (f) changes in Company vendors or other Company agents, including without limitation any and all changes to Company’s Internet service and/or Internet circuit provider(s); (g) equipment, components, parts or software, such as televisions or Internet routers, purchased or licensed from or installed by any person or entity other than SONIFI, SONIFI contractors, SONIFI sub-contractors or an Approved Third-Party Financing Company; (h) misuse; (i) accidental damage, including but not limited to, contact with liquid, extreme heat, or foreign material; (j) limitations of technology; (k) modification, adjustment or alteration of any part of the Headend Equipment, the In-Room Equipment, the Documentation or the Licensed Software without SONIFI’s authorization; (l) unauthorized opening of or tampering with the Headend Equipment or the In-Room Equipment (including, by way of example and not limitation, any attempt to defeat a technical limitation or anti-piracy mechanism); (m) cosmetic damage to the Headend Equipment or the In-Room Equipment; (n) unreasonable or unapproved use or any use or installation inconsistent with Documentation and SONIFI or manufacturer instruction; (o) use of parts or peripherals not recommended or approved by SONIFI; (p) damage caused by servicing not authorized by SONIFI; (q) damage caused by computer or Internet viruses, bugs, worms, Trojan horses, malware, cancelbots or other malicious code not introduced directly by SONIFI employees, contractors or sub-contractors (excluding software and Updates authored, published, licensed, provided or made available by In-Room Equipment manufacturers and their suppliers and licensors for which SONIFI is not responsible or liable in any case); (r) cable cuts caused by third parties (other than SONIFI employees, contractors or sub-contractors), the Company and/or its owners, partners, members, directors, officers, employees, agents, contractors, affiliates, guests or invitees; (s) single-room issues or problems with Equipment (including Headend Equipment and In-Room Equipment) or Licensed Software; (t) changes in Company equipment at the Premises, such as televisions or the property management system; (u) any damage, problem or defect caused by Company’s movement or replacement of televisions or terminal devices; (v) firmware updates for Internet routers, wireless access points, televisions, and set-top boxes or set-back devices; (w) any damage, problem, defect, Equipment modification, Equipment upgrade or hardware addition necessitated or caused by Company’s remodeling, reduction or addition of guest rooms; (x) FTG Programming channel line-up management and changes, and questions or complaints regarding FTG Programming rates; (y) repair and programming of remote-control devices, including without limitation, battery replacement; (z) changes to Company’s or the Premises’ name; (aa) failure of Company owners, partners, members, directors, officers, employees, agents, contractors and/or subcontractors to communicate with and follow the instructions of TAC and SONIFI service personnel; (bb) public area televisions and related video programming and content; (cc) verifying high-speed Internet access data transmission availability and data speed, and all labor and parts for high-speed Internet access hardware; (dd) any damage, problem, defect or modification to Equipment or any Equipment upgrade or hardware addition, in any case, caused by Internet circuit conversions at the Premises; or (ee) a Force Majeure Event. 6.2 If Company requests and SONIFI elects, in its sole discretion, to provide maintenance, repair and/or support services required due to any of the aforementioned instances delineated in Subsection 6.1, Company shall promptly reimburse SONIFI for all labor and travel expenses, at SONIFI’s rate(s) set forth in the most recent SONIFI Rate Card available from ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ or as made available at ▇▇▇.▇▇▇▇▇▇.▇▇▇, plus (i) the cost of parts, components and other materials (if not covered under this SONIFI Limited Warranty), (ii) the trip charge specified on the Rate Card, (iii) lodging expenses, parking fees and tolls and (iv) applicable taxes, shipping, handling and freight.

Performance Exclusions. 6.1 Notwithstanding anything to the contrary in this SONIFI Limited Warranty, SONIFI has no obligation to perform any work, warranty service, Update, support, repair, replacement or maintenance associated with Equipment (including Headend Equipment and In-Room Equipment), Documentation and Licensed Software, to the extent that SONIFI determines that a problem or failure is caused by: (a) the acts or omissions of Company or its owners, partners, members, directors, officers, employees, agents, contractors, affiliates, guests or invitees, regardless of whether such acts or omissions are intentional, reckless, or negligent; (b) vandalism, theft or willful or negligent acts or omissions of Company, or any of its owners, partners, members, directors, officers, employees, agents, contractors, affiliates, guests or invitees; (c) Company’s failure to perform its obligations hereunder, including but not limited to following the site specifications in the SOW; (d) Premises renovations; (e) acts or omissions of third parties (other than SONIFI contractors or sub-contractors performing work under the Agreement or on SONIFI’s behalf); (f) changes in Company vendors or other Company agents, including without limitation any and all changes to Company’s Internet service and/or Internet circuit provider(s); (g) equipment, components, parts or software, such as televisions or Internet routers, purchased or licensed from or installed by any person or entity other than SONIFI, SONIFI contractors, SONIFI sub-contractors or an Approved Third-Party Financing Company; (h) misuse; (i) accidental damage, including but not limited to, contact with liquid, extreme heat, or foreign material; (j) limitations of technology; (k) modification, adjustment or alteration of any part of the Headend Equipment, the In-Room Equipment, the Documentation or the Licensed Software without SONIFI’s authorization; (l) unauthorized opening of or tampering with the Headend Equipment or the In-Room Equipment (including, by way of example and not limitation, any attempt to defeat a technical limitation or anti-piracy mechanism); (m) cosmetic damage to the Headend Equipment or the In-Room Equipment; (n) unreasonable or unapproved use or any use or installation inconsistent with Documentation and SONIFI or manufacturer instruction; (o) use of parts or peripherals not recommended or approved by SONIFI; (p) damage caused by servicing not authorized by SONIFI; (q) damage caused by computer or Internet viruses, bugs, worms, Trojan horses, malware, cancelbots or other malicious code not introduced directly by SONIFI employees, contractors or sub-contractors (excluding software and Updates authored, published, licensed, provided or made available by In-Room Equipment manufacturers and their suppliers and licensors for which SONIFI is not responsible or liable in any case); (r) cable cuts caused by third parties (other than SONIFI employees, contractors or sub-contractors), the Company and/or its owners, partners, members, directors, officers, employees, agents, contractors, affiliates, guests or invitees; (s) single-room issues or problems with Equipment (including Headend Equipment and In-Room Equipment) or Licensed Software; (t) changes in Company equipment at the Premises, such as televisions or the property management system; (u) any damage, problem or defect caused by Company’s movement or replacement of televisions or terminal devices; (v) firmware updates for Internet routers, wireless access points, televisions, and set-top boxes or set-back devices; (w) any damage, problem, defect, Equipment modification, Equipment upgrade or hardware addition necessitated or caused by Company’s remodeling, reduction or addition of guest rooms; (x) FTG Programming channel line-up management and changes, and questions or complaints regarding FTG Programming rates; (y) repair and programming of remote-control devices, including without limitation, battery replacement; (z) changes to Company’s or the Premises’ name; (aa) failure of Company owners, partners, members, directors, officers, employees, agents, contractors and/or subcontractors to communicate with and follow the instructions of TAC and SONIFI service personnel; (bb) public area televisions and related video programming and content; (cc) verifying high-speed Internet access data transmission availability and data speed, and all labor and parts for high-speed Internet access hardware; (dd) any damage, problem, defect or modification to Equipment or any Equipment upgrade or hardware addition, in any case, caused by Internet circuit conversions at the Premises; or (ee) a Force Majeure Event. 6.2 If Company requests and SONIFI elects, in its sole discretion, to provide maintenance, repair and/or support services required due to any of the aforementioned instances delineated in Subsection 6.1, Company shall promptly reimburse SONIFI for all labor and travel expenses, at SONIFI’s rate(s) set forth in the most recent SONIFI Rate Card available from ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ or as made available at ▇▇▇.▇▇▇▇▇▇.▇▇▇, plus (i) the cost of parts, components and other materials (if not covered under this SONIFI Limited Warranty), (ii) the trip charge specified on the Rate Card, (iii) lodging expenses, parking fees and tolls and (iv) applicable taxes, shipping, handling and freight.;