Common use of WARRANTIES AND LIMITATIONS THEREOF Clause in Contracts

WARRANTIES AND LIMITATIONS THEREOF. 6.1 In the event of commercial license, the following warranties shall apply: 6.2 FIRSTBEAT warrants for the sole benefit of the CUSTOMER, that the Software, when operated in accordance with the terms of this Agreement, shall be capable of o perating in the Operating Environment and materially conform to the Specifications. The said warranty shall be valid for a period of ninety (90) days commencing from the date of acceptance. 6.3 FIRSTBEAT shall, as the sole and exclusive remedy, free-of-charge and without undue delay correct any and all Defects in Product being in breach of the aforesaid warranty in Clause 6.1 above provided, however, that they are reported in writing by the CUSTOMER to FIRSTBEAT during the warranty period. The correction of a Defect may also take place by providing a new product, a detour or by providing the CUSTOMER with written instructions to bypass the Defect, if this can take place without additional costs or substantial inconvenience to the Licensee. 6.4 FIRSTBEAT shall perform the warranty corrections from its office. Alternatively the CUSTOMER is obliged to provide at its own cost FIRSTBEAT with a remote access to Software via internet or otherwise for the performance of the warranty corrections. If separately agreed, the Defect diagnosis and correction will be made at the CUSTOMER’s site, in which case FIRSTBEAT is entitled to charge for travel time and travel expenses in accordance with the FIRSTBEAT’s then current price list. 6.5 The warranty for the Software shall expire, if the Software is not used in the agreed Operating Environment or the CUSTOMER makes or commissions third party to make changes to the Software or to the Operating Environment, which have not been approved by FIRSTBEAT in writing in advance or the CUSTOMER refuse to update the basic software configuration recommended by FIRSTBEAT. Furthermore, the warranty given by FIRSTBEAT hereunder does not cover repair of an Defect attributable a) to the use of the Software contrary to this Agreement or the written instructions given by FIRSTBEAT, or b) to a third party product, or c) to a change or correction of the Software or the Operating Environment made by the CUSTOMER or a third party. 6.6 If it’s established, that the error reported by the CUSTOMER is not covered by the warranty, FIRSTBEAT shall be entitled to charge for the error diagnosis and locations in accordance with the FIRSTBEAT’s then current price list. FIRSTBEAT shall also be entitled to charge the CUSTOMER for such agreed corrections of errors that are not covered by the warranty. 6.7 FIRSTBEAT’s liability for the Errors in the Software shall be limited to the fulfilment of the warranty obligations set forth in Clauses 6.1 - 6.6 and they shall constitute the CUSTOMER’s sole and exclusive remedy concerning the delivery of the Software and no other remedies notwithstanding those expressly stated in this Agreement shall be available to the CUSTOMER. After the warranty period FIRSTBEAT shall have no obligations concerning the Software based on the delivery of Software. 6.8 The CUSTOMER acknowledges and agrees that analyzes created by the Software may, based on various reasons including without limitation to unstable conditions, induce inaccurate or faulty results or results which are open to various interpretations. FIRSTBEAT therefore does not warrant that the Software fits for the intended purpose of the CUSTOMER. In the event FIRSTBEAT submits the CUSTOMER any more detailed information of any such risks, the CUSTOMER is liable to inform the permitted users of the Software thereof. The CUSTOMER shall enforce necessary disclaimers towards its customers. In the event any such permitted user submits a claim towards the CUSTOMER based on faulty results of analyzes, the CUSTOMER shall defend and settle the claim at its own cost and shall hold FIRSTBEAT harmless of any such claim. 6.9 In the event of any claim, demand, cause of action, debt or liability to a third party based on infringement of any third party copyright, patent, trademark or any other intellectual property right FIRSTBEAT may, at its own expense, change, modify, or delete all or any part of the Software in order to avoid any such infringement, or alleged infringement. 6.10 THE FOREGOING WARRANTIES SET FORTH THE ENTIRE LIABILITY OF LICENSOR AND THE FOREGOING WARRANTIES ARE THE ONLY EXPRESS WARRANTY MADE TO THE CUSTOMER. FIRSTBEAT HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT ALL DEFECTS CAN BE CORRECTED, OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE AND/OR UNINTERRUPTED.