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Disclaimer
(b) Make available to Axis Softech, free of charge, such information as may be necessary to enable Axis Softech properly to conduct telephone diagnosis as part of the Axis Softech Telephone Support service, and in addition, such programs, operating manuals and information to enable Axis Softech properly to perform its obligations under this Agreement and shall use its best endeavours to provide staff familiar with the Customer's programs and operations, which staff shall co-operate fully with Axis Softech personnel operating Axis Softech's Telephone Support or present on-site, as the case may be, in the diagnosis of any malfunction of the Products. Database and Software Keep full security copies of any of the Products comprising Software and of the Customer's programs, databases and computer records in accordance with best computing practice and in any case before requesting Services from Axis Softech. The Customer acknowledges that they are responsible for re-loading their own application software after any such Services have been provided. It is the Customer's responsibility to backup data on the system. AXIS SOFTECH WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF THE COMPUTER OR NETWORK SYSTEMS. 6.2 To receive service and support, the Customer is responsible for complying with the following: (a) Prepare for the Call. The Customer can help the technician serve better if the Customer has the following information and materials ready when the call is made: the Customer System's invoice and serial numbers; service tag number; model number; the current version of the operating system being used; and the brand names and models of any peripheral devices (such as a modem, printer or scanner) being used. (b) Explain the Problem to the Technician. The Customer should describe the problem the Customer is having with the System. Let the technician know what the error message is and when it occurs; what was being done when the error occurred; and what steps have already been taken to solve the problem. (c) Cooperate with the technician. Listen carefully to the technician and follow the technician's directions. (d) If the technician is unable to resolve the problem over the phone, the technician will recommend to the Customer the next course of action to be taken. UNTIL THE CUSTOMER HAS COMPLIED WITH THE ABOVE PROCEDURES, AXIS SOFTECH CANNOT DISPATCH A SERVICE TECHNICIAN TO PERFORM ONSITE REPAIRS. 7. TELECOMMUNICATIONS If the Customer connects any of the Products to any telecommunications system, the Customer shall be responsible for obtaining the consent of the owner of that system (if necessary) to such connection and complying with all conditions relating thereto. 8. FORCE MAJEURE Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations. 9. CONFIDENTIALITY Each party shall treat as confidential all information obtained from the other pursuant to this Agreement which is marked "confidential" or the equivalent or has the necessary quality of confidence about it and shall not divulge such information to any persons (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this clause. If Axis Softech shall appoint any sub-contractor then Axis Softech may disclose confidential information to such sub-contractor subject to such sub-contractor giving an undertaking in similar terms to the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of this Agreement. 10. LIABILITY 10.1 Limited Warranty. AXIS SOFTECH WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, AXIS SOFTECH MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT OT THE SERVICES, INCLUDING BUT NO LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION AXIS SOFTECH MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION AXIS SOFTECH MAY PROVIDE. NOTHING IN THIS AGREEMENT OR ANY OTHER WRITTEN DOCUMENTATION OR ANY ORAL COMMUNICATIONS WITH CUSTOMER MAY LATER ALTER THE TERMS AND CONDITIONS OF THIS PARAGRAPH. 10.2 Axis Softech shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Products or loss of or spoiling of any of the Customer's programs or data) resulting from any lines down of or fault in the Products, unless such lines down or fault is caused by the negligence or wilful misconduct of Axis Softech, its employees, agents or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Axis Softech in providing the particular Services purchased by the Customer and then only to the extent not excluded by this Agreement. 10.3 Axis Softech shall not be liable to the Customer and does not keep the Customer indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or wilful misconduct of Axis Softech, its employees, agents or sub-contractors, or by any breach of its contractual obligations arising under this Agreement. 10.4 The Customer shall indemnify Axis Softech and keep Axis Softech fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of this Agreement. 10.5 Except in respect of injury to or death of any person, for which no limit applies, the respective liability of Axis Softech and the Customer under sub-clauses 11.1, 11.2, and 11.3 in respect of each event or series of connected events shall not exceed the charge made by Axis Softech to the Customer for the Services purchased by the Customer under the relevant Service Offering as evidenced on the Invoice. 10.6 Any service response times stated by Axis Softech in the Service Offerings are approximate only and shall not form part of the Contract. Axis Softech will use all reasonable endeavours to meet the stated response times, however Axis Softech shall not be liable for any direct or indirect loss or damage arising from it's failure to meet such response times, howsoever occasioned. 10.7 Notwithstanding anything else contained in this Agreement, Axis Softech shall not be liable to the Customer for loss of business, profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever. 10.8 Some Services may require Axis Softech to access hardware or software that is not manufactured by Axis Softech. Some manufacturers' warranties may become void if Axis Softech or anyone else, other than the manufacturer or its authorized representative, works on the hardware or software. AXIS SOFTECH DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE AXIS SOFTECH SERVICES MAY HAVE ON THOSE WARRANTIES. 11. DURATION This Agreement shall commence when the Customer's order for Services is accepted by Axis Softech or on the date specified on the Invoice or the Invoice date, whichever is the earlier and shall remain in force for the period relevant to the Service Offering purchased by the Customer. 12. TERMINATION 12.1 Notwithstanding anything else contained herein, this Agreement may be terminated:- (a) By Axis Softech forthwith on giving notice in writing to the Customer if the Customer shall fail to pay any sum due under the terms of this Agreement (otherwise than as a consequence of any default on the part of Axis Softech) and such sum remains unpaid for 14 days after written notice from Axis Softech that such sum has not been paid; or (b) By either party forthwith on giving notice in writing to the other if the other commits any material breach of any of the terms of this Agreement (other than any failure by the Customer to make any payment due hereunder in which event the provisions of paragraph (a) above shall apply) and, in the case of a breach capable of being remedied, shall have failed within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach; or (c) By either party forthwith on giving notice in writing to the other if the other shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a Court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business. 12.2 Any termination of this Agreement, howsoever occasioned, shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. 13. WAIVER Except as otherwise expressly provided for in this Agreement, no forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach, and no right, power or remedy herein conferred upon or reserved for either party, is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative. 14. CONSUMERS Nothing in this Agreement shall affect the statutory right of a Customer dealing with Axis Softech as a consumer as defined in any consumer protection legislation intended to protect consumers in similar transactions. 15. ASSIGNMENT; SUBCONTRACTING Unless otherwise provided in the Standard Service Description, SOW or Technical Specification Form, Customer may not assign this Agreement without the prior written consent of Axis Softech. Axis Softech has the right to subcontract the Services provided under this Agreement. 16. NOTICES 16.1 All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class prepaid letter, telex or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by telex or facsimile transmission when dispatched. 16.2 Any notice which affects the validity or existence of this Agreement shall be delivered personally or sent by registered letter post only. 17. SEVERANCE If any provision of this Agreement (including terms contained in a relevant Service Offering) is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected thereby. 18. HEADINGS The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement |
