These terms and conditions govern the provision of consulting services by THERASOFT® ONLINE INC ("Therasoft® Online") under its Consultation Program (the "Program") to each customer which agrees to participate in the Program ("Customer"). This Program covers the consulting and related services ("Services") to be provided by Therasoft® Online for the term of Customer's participation in the Program, upon and subject to these terms and conditions, to the extent selected by Customer and set forth in one or more mutually agreed-upon Statements of Work (each referred to herein as an "SOW") describing the Services to be performed by Therasoft® Online and providing for Customer's participation in the Program.
This Program does not cover the cost of Customer's Equipment or, unless Equipment maintenance is specified in an agreed-upon SOW, any costs of maintaining or repairing such Equipment, or Customer's charges for telephone or other communications services, power and utility charges, Customer's own property damage and liability insurance coverage, or other items not specifically provided for in this Program. Customer shall be responsible for obtaining all necessary Equipment and for all costs and charges relating thereto (Customer may, in agreement with Therasoft® Online, elect to obtain such Equipment through Therasoft® Online's Equipment Use Program), and for selecting, arranging and paying for all communications services deemed necessary or desirable by Customer for the operation of or connection with Customer's network.
IN NO EVENT SHALL THERASOFT® ONLINE, ITS OWNERS, AFFILIATED COMPANIES, SUPPLIERS, AGENTS OR SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, TOLL FRAUD OR OTHER UNAUTHORIZED USE, OR LOSS OF USE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER OR NOT THERASOFT® ONLINE OR SUCH OTHER PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. CUSTOMER'S EXCLUSIVE REMEDY FOR ANY DEFAULT OR BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED, SHALL BE LIMITED TO THE REPERFORMANCE OF CONFORMING SERVICES AT THERASOFT® ONLINE'S EXPENSE OR, AT THERASOFT® ONLINE'S OPTION, REFUND OF AMOUNTS PAID BY CUSTOMER FOR NONCONFORMING SERVICES UNDER THE APPLICABLE SOW. This limitation of liability applies with equal force and effect to all subsequent Services performed by Therasoft® Online under this Program.
Therasoft® Online shall provide its Services in accordance with the same first class standards applied by Therasoft® Online to its similar projects for its affiliated companies and other clients, in a good faith effort to support Customer in developing, implementing and/or managing Customer's network or its other intended system(s), network designs or other projects or services as described in applicable SOWs ("Customer's Project"). However, as the successful implementation or operation of Customer's Project ultimately depends upon many factors beyond the control of Therasoft® Online (including the efforts and performance of Customer and other vendors selected by Customer), Therasoft® Online does not warrant the completion or success of such Project nor, except as provided in the preceding sentence, make any other warranty as to the Services. Therasoft® Online shall have no liability or obligation to Customer for any defect or failure of such Project.