Service Provider represents and warrants to Subscriber that:
1. It is in the business of providing the Solution;
2. The Solution are fit for the ordinary purposes for which they will be used;
3. It is the lawful licensee or owner of the Solution (excluding any Subscriber Data therein) and has all the necessary rights in the Solution to grant the use of the Solution to Subscriber;
4. To the knowledge of the Service Provider, the Solution and any other work performed by Service Provider hereunder shall not infringe upon any Canadian copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement;
5. It shall disclose any third-party (which shall, for purposes of this Agreement, be deemed a subcontractor) whose intellectual property is incorporated into the Solution or who is necessary for the performance of the Solution and it shall maintain in-force written agreements with such third-party, if any, for the term of the third-party relationship;
6. It has the expertise to perform the Solution in a competent, workmanlike, and professional manner and in accordance with the highest professional standards;
7. It will use all reasonable efforts to ensure that no computer viruses, malware, or similar items (collectively, a “Virus”) are introduced into Subscriber’s computing and network environment by the Solution, and that, where it transfers a Virus to Subscriber through the Solution, it shall reimburse Subscriber the actual cost incurred by Subscriber to remove or recover from the Virus, including the costs of persons employed by Subscriber;
8. The Solution are free of any mechanism which may disable the Solution;
9. In the case of Subscriber’s reasonable dispute of any Service Provider invoice, it shall not withhold the performance of Solution, including, without limitation, access and use of the Solution, Technical Support, and extract of Subscriber Data (as defined herein);
10. The Solution will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth as expected based on acceptable industry standards;
11. For any breach of the above warranties by Service Provider, Service Provider will remit a Subscription Fee credit to Subscriber in the minimum amount equivalent to the pro-rated cost of the Solution to the Subscriber for the number of days which the Subscriber lost material functionality, or in an amount greater than the pro-rated amount that the Service Provider may offer in its sole discretion. The credit will be provided only towards any outstanding balance for services owed to Service Provider. Such credit shall represent Subscriber’s exclusive remedy, and Service Provider’s only liability, for the breach of the warranty under this Agreement; and
12. Service Provider will not unreasonably restrict or suspend Subscriber’s access to Solution.
SERVICE PROVIDER DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SERVICE PROVIDER WILL CORRECT ALL SERVICE ERRORS. SUBSCRIBER ACKNOWLEDGE THAT SERVICE PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE GREATEST EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS, OR ENVIRONMENTS FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.