6.1. TD Ownership; Infringement Indemnity.
6.1.1. All computer programs and related Documentation made available, directly or indirectly, by TD to Customer as part of the Services are the exclusive property of TD or the third parties from whom TD has secured the rights to such services or products. All rights, title and interest in or to any copyright, trademark, service mark, trade secret and other proprietary right relating to the Software and the Services are reserved.
6.1.2. TD shall indemnify, defend and hold harmless Customer from and against any and all suits, proceedings, claims, demands, or causes of action by a third party that the Software infringe upon or misappropriate any United States copyright, patent, trade secret or other intellectual or industrial property right of any kind or nature whatsoever (a “Claim”).
6.1.3. TD shall have no liability under this Section 6.1 to the extent a Claim is attributable to (i) combination or use of the Software with any item, component, product, material, software or process not provided by TD, if liability would not have arisen but for such combination or use with such item, component, product, material, software or process; (ii) use of the Software in any way not authorized nor contemplated by the Agreement, if liability would not have arisen but for such unauthorized use; or (iii) any breach by Customer of the Agreement, if liability would not have arisen but for such breach.
6.1.4. In the event the Software is held by a court of competent jurisdiction to, or is believed by TD to, infringe or misappropriate any third party right, TD shall have the option, at its expense, to (i) modify the Software to be non-infringing, (ii) replace the Software with a non-infringing substitute, (iii) resolve any Claim to allow use of the Software, (iv) obtain for Customer a subscription to continue using the Software, (v) terminate the Subscription for the infringing Software, or (vi) terminate the Agreement.
6.1.5. The indemnification obligations set forth in this Section 6.1 are subject to the following conditions: (i) Customer shall give TD written notice of any Claim for which Customer intends to claim indemnification within 30 days of the Claim; (ii) Customer shall give TD the sole right to control and direct the investigation, defense and settlement of the Claim, including selection of defense counsel; and (iii) Customer shall reasonably cooperate with TD in the investigation, defense and settlement of the Claim. Reasonable out-of-pocket expenses incurred by Customer in providing such assistance will be reimbursed by TD. Customer shall not settle or compromise any Claim, and any such settlement or compromise shall be void as against TD and shall terminate TD’s obligation to indemnify Customer with respect to such Claim.
6.1.6. Customer acknowledges and agrees that the remedies provided in this Section 6.1 are the sole and exclusive remedies of Customer, and consequently the sole and exclusive liability of TD, with respect to any Claim.
6.2. TD Warranties; Time Period; Disclaimers.
6.2.1. Warranty for the Software and Services. Subject to Customer’s compliance with its obligations under Section 4.2, TD represents and warrants that the Software and Services will perform in all material respects in accordance with the Documentation provided by TD within the Software, website, paper, or CD copies of such Documentation. This warranty shall apply for a period of thirty (30) days following the Service Start Date, and any breach not reported within such period will be deemed waived and accepted by Customer.
6.2.2. Warranty for Other Services. TD warrants that the Support Services, the Training Services and any other service set forth in an Order agreed to by Customer (excluding services contemplated by Section 6.2.1) will be performed in a manner that is consistent with generally accepted industry standards for such Service. With respect to Training Services, TD does not guarantee any specific results, and the results Customer may realize are primarily dependent on Customer’s ability to utilize and implement ideas, concepts, and practices presented in the Training Services. Any breach not reported to TD by Customer within thirty (30) days of performance of such Services will be deemed waived and accepted by Customer.
6.2.3. Disclaimers. THE WARRANTIES SET FORTH IN THIS SECTION 6.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY ORAL REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OF TD AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TD AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SOFTWARE.
TD does not warrant that the Software will operate in the combinations that Customer may select for use, that the Software will meet Customer’s requirements, that the operation of the Software will be uninterrupted or error-free, free of viruses or any other malicious code, free from any security breach or intrusion, technical or other malfunction or error, that may compromise Customer Data (inclusive, without limitation, of User Data or Student Data) , or fit for its intended purpose, or that all Software errors will be corrected. Any description of the Software contained on TD’s website or promotional materials is for the sole purpose of identifying them, and any such description is not a part of the basis of the bargain and does not constitute a warranty or representation.
6.3. Exclusive Remedies. For any breach of the representations and warranties contained in Section 6.2, Customer’s exclusive remedy, and TD’s entire liability, shall be as follows:
6.3.1. With respect a breach of the representation and warranty set forth in 6.2.1, TD shall correct the errors that caused TD to breach its warranty to Customer.
6.3.2. With respect a breach of the representation and warranty set forth in 6.2.2, TD shall re-perform the applicable Service.
6.3.3. If correction of the errors or re-performance of the applicable Service is not feasible or commercially reasonable, TD may refund the fees paid by Customer for the applicable Software or Service at issue.
6.4. Exculpation of Certain Claims; Limitation on Liability.
6.4.1. Customer shall be liable for (and Customer hereby waives any and all claims which Customer may have against TD for), (i) any inaccuracy in User Data provided by Customer or its Users, (ii) the consequences of any instructions Customer may give to TD, and (iii) Customer’s failure to protect User account names and passwords. In addition, TD is not responsible for (x) Customer’s access to the Internet, (y) interception or interruptions of communications through the Internet or (z) changes or losses of data through the Internet.
6.4.2. Limitation of Liability. In no event shall TD be liable under the Agreement for any indirect, incidental, special, consequential or punitive damages, or any damages for business interruption, loss of profits, revenue, data or use, or cost of cover suffered by Customer or by any third party, whether in an action in contract or tort, and even if TD has been advised of or is aware of the possibility of such damages. TD’s total liability for damages suffered by Customer or any of its affiliates under the Agreement or related to the Services shall in no event exceed an amount equal to three (3) times the average monthly fee paid by Customer to TD under the Agreement.
6.4.3. This Section 6.4 sets forth the full extent of TD’s liability for damages resulting from this Agreement and the Services, regardless of the form in which such liability of claim for damages may be asserted. The provisions of the Agreement allocate the risks between TD and Customer.
The parties agree that TD’s pricing and other terms and conditions of the Agreement reflect the allocation of risk and the limitation of liability specified herein, and Customer acknowledges that without such limitation on liability and Customer’s agreement to maintain redundant copies of all data provided to TD in connection with the Services, TD would not have entered into this Agreement. For the avoidance of doubt, TD shall, under no circumstances whatsoever, be liable to Customer or any third-party related to any loss or compromise of Customer Data (inclusive, without limitation, of User Data or Student Data).