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h)
Software Upgrades
i)
Software Upgrades include new Features and/or Functional Enhancements
and are not included as part of the Standard Warranty but may be purchased at
the published rates.
ii)
Note: In the absence of a Software Update containing a program correction
and no available workaround to mitigate the problem, at the discretion of Service,
Sales, Engineering, or Product Management, the Customer may be provided a
Software Upgrade under warranty.
2.
Exclusions. Services do not cover damage or failure caused by any
occurrence beyond Clear-Com's reasonable control, including without limitation
acts of God, fire, flooding, earthquake, lightning, failure of electric power or air
conditioning, neglect, misuse, improper operation, war, government regulations,
supply shortages, riots, sabotage, terrorism, unauthorized modifications or repair,
strikes, labor disputes or any product failure that Clear-Com determines is not a
result of failure in the Services provided by Clear-Com. Further Services excluded
from this Agreement include: services required due to errors or omissions in
Customer purchase orders; installation or maintenance of wiring, circuits,
electrical conduits or devices external to the products; replacement or
reconditioning of products which, in Clear-Com's opinion cannot be reliably
maintained or properly serviced due to excessive wear or deterioration;
Customer's failure to maintain the installation site in accordance with the
environmental specifications of the products; or service on products removed
from the location originally specified by Customer and/or reinstalled without the
prior written approval of Clear-Com. Customer will pay Clear-Com's then current
published charges to restore such Covered Products to a condition eligible for
further service under this Agreement. Clear-Com shall be excused from and shall
not be liable for any failure or delay in performance under this Agreement due to
the foregoing or any causes beyond its reasonable control.
3.
Limitation of Liability. IN NO EVENT WILL CLEAR-COM BE LIABLE UNDER
THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS),
REGARDLESS OF THE FORM OF ACTION, EVEN IF ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES.
4.
Assignment. Neither party may assign this Agreement or any portion
thereof without the prior written consent of the other, except in the event of a
merger, sale of all or substantially all of the assets or other corporate
reorganization.
