Hardware Warranty. For a period of one year from the date of shipment, Tendril warrants to its Customers that the Tendril Hardware Products will be free from defects in materials and workmanship and will conform to the applicable specifications. Tendril’s sole obligation in connection with the breach of a warranty shall be for Tendril to repair non-conforming Tendril Products or provide Customer with replacement Tendril Products. Tendril Products that are repaired or replaced hereunder will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. This limited warranty does not cover a Tendril Product that fails to conform to its warranty because of: (a) accident, abuse, misuse, negligence, modification, or improper maintenance; (b) a failure caused by any item which Tendril did not provide or for which Tendril is not responsibleSoftware Warranty. Tendril warrants that commencing from the date of delivery to Customer and continuing for a period of 90 days: (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to its published specifications.
The date of shipment of a Product by Tendril is set forth on the packaging material in which the Product is shipped. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to the Customer who is the original licensee.
Customer’s sole and exclusive remedy and the entire liability of Tendril and its suppliers under this limited warranty will be, at Tendril’s option, repair or replacement of the Software. Repair shall consist of (i) patch down load service and (ii) access to bug fixes. In no event does Tendril warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.
This warranty does not apply if the Product (a) has been altered, except by Tendril, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Tendril, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is licensed, for beta, evaluation, testing or demonstration purposes for which Tendril does not receive a payment of purchase price or license fee.
In addition, due to the continual development of new techniques for intruding upon and attacking networks, Tendril does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
Limitation of Liability. EXCEPT FOR LIABILITIES ARISING OUT OF TENDRIL’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) REGARDLESS WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PRODUCTS, SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND TENDRIL MAKES NO WARRANTIES, REPRESENTATIONS WITH RESPECT TO THE USE, OR INABILITY TO USE THE SERVICES. TENDRIL DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE. THE SOFTWARE INCLUDED IN TENDRIL PRODUCTS AND THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL FOR EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE OR THE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). TENDRIL SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES AND TENDRIL WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE OR THE SERVICES.