1. Duplication and Disclosure. LICENSEE may copy PROGRAM into any machine-readable form for backup or modification purposes in support of LICENSEE’s use of PROGRAM. Consultant may retain one or more copies of PROGRAM to facilitate its recordkeeping procedures. LICENSEE agrees that the PROGRAM and documentation produced by Consultant shall be held in confidence and that no part of PROGRAM or its documentation shall be disclosed by LICENSEE to others without the express written permission of Consultant. LICENSEE may not use, copy, modify, or transfer PROGRAM, or any copy, modification, or merged portion, in whole or in part, except as expressly provided in this Software Agreement.

  2. Limited Warranty. Consultant is providing PROGRAM on an “AS-IS” basis. The parties agree that any instructions or other documentation provided by Consultant are solely for assistance to LICENSEE in understanding the operation of PROGRAM and are not intended to describe the features, functions, or operation of PROGRAM in accordance with industry standards for documentation of software.

    Consultant warrants that the media on which PROGRAM is recorded will be free from defects in materials or workmanship under normal use for a period of 90 days after acceptance. Consultant does not warrant or represent that PROGRAM will be free from defects and Consultant shall not have any obligation to correct the defects or replace the PROGRAM or to pay for or be responsible for any PROGRAM defects.

    CONSULTANT MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY AND PERFORMANCE OF PROGRAM, THAT THE METHODOLOGY OR CALCULATIONS CONTAINED IN PROGRAM WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

    LICENSEE assumes the entire risk that the quality of performance of PROGRAM will meet LICENSEE needs. Should PROGRAM prove defective, LICENSEE assumes the entire cost of all necessary servicing, repair or correction, except to the extent of the warranties provided in this Paragraph 5.

    LICENSEE acknowledges that the results of all calculations are subject to interpretation, and Consultant therefore makes no implied or express warranty of results obtained by using PROGRAM.

  3. Limitation of Liability.  Consultant ‘s liability, and LICENSEE’S exclusive remedy with respect to the delivery, operation, and maintenance of the PROGRAM, shall be the replacement of any media not meeting Consultant’s limited warranty and which is returned to Consultant or refund of the applicable license fee paid by Licensee.  In no event will Consultant be liable to LICENSEE for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use PROGRAM, even if Consultant has been advised of the possibility of damages, or for any claim by any other party.

    In any event, Consultant’s liability to LICENSEE on any basis or cause of action arising from use of or inability to use the PROGRAM shall not exceed the license fees paid for PROGRAM.  Remedies as set forth in this SOFTWARE AGREEMENT are LICENSEE’s exclusive remedies with respect to the PROGRAM, including any non-contractual rights or causes of action LICENSEE may otherwise have.  LICENSEE waives all warranties imposed or implied by law in connection with PROGRAM other than the warranties specifically provided herein.

  4. Alterations and Modifications.  To the extent LICENSEE makes modifications, variations, or additions to PROGRAM, LICENSEE does so at LICENSEE’s own risk and expense.  LICENSEE may also merge PROGRAM into other program material to form an updated work, but only at LICENSEE’s own risk and expense and only for LICENSEE’s own internal use.

  5. Responsibilities.  LICENSEE shall be exclusively responsible for the selection of PROGRAM and supervision, management and control of the use of PROGRAM, including proper machine configuration, program installation, audit controls, and operating methods.  LICENSEE recognizes that Consultant does not promise PROGRAM will be trouble-free and that R. W. BECK may not fix every problem.

  6. Dispute Resolution. Any disputes shall be subject to final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association, including all issues of arbitrability. The prevailing shall be entitled to payment of all attorney's fees, costs and expenses during the dispute resolution process.