9. Warranties and Liability
9.1. Workbench International warrants that:
(a) the Software will function substantially as described in any Documentation and / or Budget Proposal provided by Workbench International
(b) the Services will be provided with reasonable skill and care; and
(c) the Software does not infringe the copyright of any third party except that Workbench International, its employees, agents and sub-contractors will not be
liable to Customer to the extent that the alleged infringement is based on:
(i) a modification of the Software or Documentation by anyone other than Workbench International; or
(ii) Customer's use of the Software or Documentation in a manner contrary to the instructions given to Customer by Workbench International; or
(iii) Customer's use of the Software or Documentation after notice of the alleged or actual infringement from Workbench International or any appropriate
9.2. If the Software does not function substantially in accordance with the Documentation, Workbench International will, at its option, either:
(a) modify the Software to conform to the Documentation; or
(b) provide a workaround solution that will reasonably meet Customer’s requirements.
If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate this Agreement by giving written notice to the other party, in which case Workbench International will refund to Customer all Subscription Fees pre-paid to Workbench International for the unused term of the Subscription. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the warranty set out in clause 9.1.
9.3. Workbench International will not be liable for a breach of the warranty in clause 9.1 to the extent of any non-conformance which is caused by use of the Software
contrary to the Documentation and any other Workbench International instructions, or modification or alteration of the Software by any party other than Workbench International or Workbench International's duly authorised contractors or agents.
9.4. Notwithstanding clause 9.2, Workbench International does not warrant:
(a) that Customer's use of the Software will be uninterrupted or error-free;
(b) that the Software, Documentation and/or the information obtained by Customer through the Software will meet Customer's requirements; and
(c) the accuracy, correctness, reliability and completeness of any information, formulae, or calculation provided through the use of the Software (together
referred to as Calculations). Customer acknowledges the results from any Calculations are for informational purposes only, and that the assumptions used and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been taken into account in the computation. To the maximum extent permitted by law, Workbench International will not be liable for any form of loss or damage, arising out of or in connection with Customer’s reliance on and use of the Software. Customer agrees that it will not rely solely on the Calculations and will carry out its own calculations (other than by using the Software) to verify the accuracy, correctness, reliability and completeness of the Calculations.
9.5. Customer acknowledges that:
(a) Workbench International may rely on the provision of services by third parties (including data centre, cloud hosting providers (e.g. AWS Amazon Web
Services), telecommunications and outsourcing providers) in order to provide the Software and Services (Third Party Providers) and that the Software and Services may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
(b) Workbench International will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any
services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
9.6. Except as expressly set out in this Agreement, the Software, Services and Documentation are provided on an “as is” basis and all representations, conditions
or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Software, Services and Documentation are expressly excluded.
9.7. Customer will indemnify Workbench International against all costs, losses, expenses and damages incurred through any claims against Workbench International
resulting from the use of the Software, Services and the Documentation by Customer and Licensed Users.
9.8. Except for a breach by either party of its confidentiality obligations or an infringement by either party of the other party’s Intellectual Property Rights:
(a) neither party will be liable to the other party for loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered
or incurred by the other party as a result of anything done by the first party under this Agreement; and
(b) Workbench International’s maximum liability arising out of all claims for loss or damage under this Agreement will not exceed in aggregate an amount equal
to the Fees actually paid by Customer to Workbench International in the six months prior to the first time Workbench International has any liability to Customer for loss or damage under this Agreement.
9.9. Customer acknowledges and agrees that only Licensed Users who are Employees of the Customer may make a claim in relation to this Agreement provided that where
any Licensed User suffers any loss or damage which, if suffered by Customer, would be recoverable from Workbench International then Customer may make that claim on the Licensed User’s behalf. Customer will indemnify Workbench International against any claims made by any Licensed User in relation to this Agreement.