Datamaker warrants that, during the 180-day period (the “Software Warranty Period”) that commences on the date that Datamaker Enabled Use of the Software (whether for an initial license purchase or for Maintenance Software), the Software, when properly used, shall perform substantially in accordance with the Documentation. Datamaker warrants that, at all times, the Software shall be free of any harmful or malicious code. Datamaker does not otherwise warrant or represent that Customer’s use of the Software will be uninterrupted or error-free. If Customer reports to Datamaker in writing within the Software Warranty Period any nonconformity between the Documentation and the Software (a “Warranty Claim”), and if Datamaker is able to replicate and verify that such nonconformity exists, Datamaker shall attempt to correct such nonconformity and supply Customer with such correction at no additional cost. If such efforts are unsuccessful and the nonconformity is material, Customer’s sole remedy for a breach of the warranty described in this section 5.1 shall be as follows: Customer may terminate this Agreement, discontinue use of, and return or destroy all copies of the Software, and Datamaker will ensure that Customer receives a refund of the fees paid for the Software or the Maintenance Software (as applicable) during the applicable Software Warranty Period.
If Customer is entitled to receive Customer Support as part of a separately purchased Service Plan, Datamaker warrants that while Customer’s Service Plan is in effect and if it has paid all required Service Plan fees, Datamaker will use qualified personnel to provide Customer Support in a professional manner consistent with industry standards. Customer’s sole remedy under this section 5.2 is limited to Datamaker’s re-performance of the Customer Support services giving rise to Customer’s claim.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND IS ONLY FOR COMMERCIAL USE, SUBJECT TO ANY RESTRICTIONS IN THIS AGREEMENT OR THE DOCUMENTATION. Datamaker, ON BEHALF OF ITSELF, ITS AFFILIATES, AND ITS LICENSORS, DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE (I) OF MERCHANTABILITY OR SATISFACTORY QUALITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT AND (IV) ARISING FROM CUSTOM, TRADE UDatamaker, COURSE OF PRIOR DEALING OR COURSE OF PERFORMANCE. NEITHER Datamaker, ITS AFFILIATES, NOR ITS LICENSORS WARRANT THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE, DOCUMENTATION, AND/OR THE INFORMATION OBTAINED BY CUSTOMER THROUGH USING THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR PRODUCE PARTICULAR OUTCOMES OR RESULTS. Datamaker IS NOT RESPONSIBLE FOR ANY PERFORMANCE ISSUES OR ERRORS WITH THE SOFTWARE THAT ARISE FROM CUSTOMER’S DATA OR ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT Datamaker DOES NOT PROVIDE ANY ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL, OR OTHER ADVICE TO CUSTOMERS, USERS, OR ANY THIRD PARTIES.