CyberlinkASP Technology, Inc., (“CyberlinkASP Technology, Inc.”) has published this acceptable use policy (“AUP”) in an effort to enhance the use of the Internet by promoting responsible use and in an effort to provide a reliable, high-quality service to its customers. In that regard, CyberlinkASP Technology, Inc. requires its customers and other third-party users (collectively, its “Users”) to utilize CyberlinkASP Technology, Inc.’s services and network responsibly and in compliance with all applicable laws and the terms of this AUP. This AUP supplements rather than supersedes any and all agreements between a User and CyberlinkASP Technology, Inc. with respect to the use of CyberlinkASP Technology, Inc.’s services and network by such User. Use by a User of CyberlinkASP Technology, Inc.’s services or network constitutes acceptance by such User of the terms of this AUP.
Users may not use CyberlinkASP Technology, Inc.’s services or network (i) in violation of any applicable local, state, or federal law or regulation; (ii) in a manner that infringes or may infringe upon any copyrights, trademarks, patents, trade secrets, or other types of intellectual property; (iii) to transmit offensive or threatening materials, including materials that are obscene, pornographic, defamatory, libelous, abusive, hateful, excessively violent, or otherwise inappropriate; (iv) to transmit fraudulent, deceptive, or misleading materials or to advance any type of financial scam; (v) to transmit any materials that harass another person or entity; (vi) to transmit viruses, Trojan horses, or other materials harmful to any network or equipment or other Users or third parties; or (vii) in a manner that exposes or may expose CyberlinkASP Technology, Inc., its customers, partners, or vendors, or any other person or entity using the CyberlinkASP Technology, Inc. network to abuse, complaints, retaliation, connectivity issues, or other negative impact.
System and Network Security
Users may not use CyberlinkASP Technology, Inc.’s services or network to violate or to attempt to violate the security of any network, service, data, or other system without proper authorization, including, without limitation, (i) any attempt to access any network, service, data, or other system that such User is not authorized to access; (ii) any attempt to probe, scan, or test the vulnerability of any network, service, or system without proper authorization; (iii) any attempt to breach any security or authentication measures; (iv) any attempt to monitor data or traffic on any network or system without proper authorization; (v) any attempt to interfere with service to any User, host, or network, including, without limitation, by means of overloading, mailbombing, flooding, crushing, or any denial of service attacks; (vi) any attempt to forge any TCP/IP packet header or any part of the header information in an e-mail message or a newsgroup posting; or (vii) any attempt to utilize another User’s account name without proper authorization.
Users may not use CyberlinkASP Technology, Inc.’s services or network to transmit any unsolicited commercial or unsolicited bulk e-mail messages (commonly known as “spam”). For purposes of this AUP, an e-mail message shall be deemed to be unsolicited if (i) it is sent to a recipient (a) who has not expressly requested or invited it, (b) with whom the sender does not have an existing personal or business relationship, or (c) who has requested that the sender not send it any further e-mail messages or (ii) such e-mail message is considered to be unsolicited under any applicable local, state, or federal law or regulation. In addition, Users are prohibited from using the services or network of another provider to send spam or to promote a site hosted on or connected with CyberlinkASP Technology, Inc.’s services or network.
All postings to Usenet groups must comply with such group’s charter, rules, guidelines, and agreements (collectively, “Usenet Policies”). In addition to any such Usenet Policies, Users may not use CyberlinkASP Technology, Inc.’s services or network to post the same or similar messages to one or more Usenet groups (commonly known as “Usenet spam”).
If CyberlinkASP Technology, Inc. determines that a User has violated any of the terms of this AUP, CyberlinkASP Technology, Inc. shall have the right in its sole discretion (i) to demand the immediate removal of the violating material and/or (ii) to terminate or to suspend such User’s services. CyberlinkASP Technology, Inc. may involve and shall cooperate with law enforcement authorities if criminal activity is suspected. In addition, Users who violate this AUP may be subject to civil or criminal liability. CyberlinkASP Technology, Inc. shall not be liable for any damages suffered by any User or third party resulting directly or indirectly from any actions taken by CyberlinkASP Technology, Inc. pursuant to this AUP. In order to protect the CyberlinkASP Technology, Inc. network and all Users utilizing the CyberlinkASP Technology, Inc. network, CyberlinkASP Technology, Inc. shall have the right, immediately and without prior notice, to terminate routing of a User’s assigned IP address space in the event such User is under a network-based attack; however, CyberlinkASP Technology, Inc. shall use reasonable efforts to reinstitute routing of such User’s assigned IP address space in CyberlinkASP Technology, Inc.’s discretion following such network-based attack. In the event that User experiences repeated network-based attacks, CyberlinkASP Technology, Inc. reserves the right to suspend or terminate such User’s services immediately and without prior notice.
Violations or potential violations of this AUP may be reported to CyberlinkASP Technology, Inc. at email@example.com.
CyberlinkASP Technology, Inc. reserves the right to modify this AUP from time to time without notice in CyberlinkASP Technology, Inc.’s sole discretion. Such modifications shall be effective when posted.
Customer Service Agreement (and Exhibit to AUP)
This Agreement is by and between CyberlinkASP Technology, Inc., and (“Customer”) (collectively referred to herein as the “Contracting Parties”). “Customer” shall include Customer’s corporate parent, subsidiaries, and affiliates that are majority-owned by Customer, or its parent, or are under voting control of such entities and/or related companies approved by Provider to receive Services under this Agreement, who purchase Services hereunder.
Customer wishes to engage Provider to perform certain services as more particularly described, if applicable in Exhibit “A,” attached to and made a part of this Agreement, as well as such other additional and/or modified Services on projects that may, from time to time, be assigned by Customer pursuant to the procedures provided therein.
For the mutual covenants and considerations set forth herein, Customer and Provider agree as follows:
1. Service Description
- 1.1 General Scope. Customer hereby engages Provider to perform the Services as described in Exhibit A, or as from time to time may be assigned pursuant to Paragraph 1.2. Provider agrees to perform the Services in accordance with the highest professional standards applicable to the performance of like services. Upon thirty (30) days notice to Customer, Provider reserves the right to change or modify any of the terms and conditions contained in the Agreement in its sole discretion. Provider may employ such employees as Provider deems necessary to perform the Services. All references in this agreement to “Provider” shall also include such employees of Provider.
- 1.2 Additional Services. Customer may, from time to time, request that Provider perform additional Services (“Additional Services”). If Provider accepts such assignments, the parties shall agree to the parameters of the Additional Services to be undertaken by executing an “Additional Work Authorization Agreement” The Additional Services shall be considered “Services” under this Agreement, and shall be performed in accordance with and subject to the terms and conditions of this Agreement and the Additional Work Authorization specifying the Services to be performed. Additional Services will only be prorated into the remaining term of this agreement if the Additional Services are consistent with providing additional hosting capacities. The Fees for Additional Services shall be agreed upon by the parties and included in the Additional Work Authorization form. Provider shall only be compensated for Additional Services pursuant to properly executed Additional Work Authorization forms as provided in this agreement. Any work which is not so authorized and documented shall not be entitled to compensation and Provider hereby waives any compensation for such additional and/ or modified work. Payment of the Fees shall be subject to completion of the Services as provided herein.
- 1.3 Exclusions. Unless otherwise expressly provided elsewhere in this Agreement, Provider’s Services do not cover: (a) service of equipment damaged by misuse, accident, modification, unsuitable physical or operating environment, improper maintenance by Customer, removal or alteration of equipment, or failure, caused by a product for which Provider is not responsible.
- 1.4. Third Party Products Not Covered. Services do not include warranty or repair service, or any other services, for third party products. Provider is not responsible for the performance of other vendors’ products and services. You hereby indemnify and hold Provider harmless for any claims related to those third party products or services.
- 1.5 Written Reports. Customer may periodically request reasonable written reports concerning Provider’s progress, project status, billing data, and other matters pertaining to the Services, and Provider shall promptly provide such reports to Customer at no additional charge.
- 1.6 Competing Services. Customer agrees that Provider may engage in other business activities provided they do not affect its ability to perform its obligations and carry out its responsibilities to Customer hereunder.
- 1.7 Customer Responsibilities. Customer acknowledges that Provider’s performance and delivery of the Services are contingent upon: (i) Customer providing access to its personnel, facilities, equipment, hardware, software, network and information and (ii) Customer’s timely decision-making, notification of relevant issues or information, and granting of approvals and/or permission. Customer will promptly obtain and provide to Provider any required consents or authorizations necessary for Provider’s performance of the Services described in this Agreement. The Customer is responsible for reviewing every invoice for services in a timely manner, and prior to submitting payment to provider. CyberlinkASP will only review and consider refund(s) or credit on all invoice or billing disputes or discrepancies brought to our attention for dates of service ninety (90) days past. Customer agrees to Acceptable Use Policy.
2. Terms, Termination and Cancellation
- 2.1 Terms. This agreement is effective from the date it is executed by both parties (“Effective Date”) and shall continue for a period of twelve  months after the Effective Date, or until it is terminated in accordance with this paragraph or elsewhere in this Agreement. Upon termination, all rights and obligations of the Contracting Parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination. Provider hereby grants to customer an option to renew the agreement for one (1) additional term, upon the expiration of the initial terms thereof, subject however to providers rights to renew or extend licenses etc. and provide services at current costs. Such option shall be deemed exercised unless Customer gives written notice to Provider, or Provider gives written notice to Customer, to terminate the agreement at the end of the Initial Term or Renewal Term, however applicable; such written notice to be received by Provider, or Customer, no less than thirty days prior to the expiration date of the then current Term. The initial Term and any Renewal Term may be referred to collectively herein as the “Term”. During each Renewal Term, Service Charges shall be established at the then prevailing rate provider charges for similar, new service agreements, such rate to be in effect for the entire Renewal Term (with no less than a 3% increase in rate per term, or per annum if agreement is month-to-month). After each ‘term’ has ended, agreement will continue ‘month to month’ and may be terminated by either party with no less than 30 days written notice.
- 2.2 Termination
(a) If this Agreement is terminated by the Customer for any reason other than Provider’s breach of this agreement, Customer shall pay Provider a termination fee (the “Termination Fee”) equal to the remaining contract. The Customer acknowledges that the Termination Fee is not in substitute or election of any other right or remedy Provider may have at law or in equity. The termination of this Agreement for any reason other than Provider’s breach shall not relieve the Customer from any liability for amounts owing and accrued prior to the time that such termination becomes effective and, in such event, Customer shall also be liable to Provider for any further charges with respect to any Additional Services properly performed prior to the date of termination.
(b) This Agreement may be terminated forthwith by either party, without penalty, upon the occurrence of any of the following:
(i) The other party engaging directly or indirectly in any attempt to defraud the terminating party;
(ii) A material breach by the other party of any of the terms of this Agreement which breach is not remedied by the other party to the terminating party’s reasonable satisfaction within 5 business days of the other party’s receipt of notice of such breach from the terminating party.
3. Compensation and Expenses
- 3.1 Compensation. As full and complete consideration for the Services to be performed by Provider, Customer agrees to pay Provider total fees (hereinafter referred to as “Fees”) in accordance with this Paragraph 3. For the Services to be provided under Exhibit A, the Fees shall be as set forth in Exhibit A. For any Additional Services pursuant to Paragraph 1.2 above, the Fees shall be agreed upon prior to the initiation of such Additional Services and set forth in the Additional Work Authorization as provided in Paragraphs 1.2 above. Provider shall only be compensated for Additional Services pursuant to properly executed Additional Work Authorizations.
- 3.2 Expenses. The Fees shall include all sums due and owing of every kind and description, including but not limited to, telephone calls, mileage, stationery, and special services such as typing, duplication costs and mailing expenses. Unless these costs are specifically agreed to as a separate reimbursable expense item on Exhibit A or in an Additional Work Authorization, Customer will not pay Provider therefore. Subject to the provisions of Exhibit A, paragraph 4, Customer will reimburse Provider for such reasonable and necessary out of pocket expenses incurred by Provider in the performance of the Services that are approved, in advance and in writing, by Customer. Provider will submit to Customer a detailed statement of the Services performed by Provider together with support for all expenses for which reimbursement is sought. Customer agrees to pay the amount due to Provider within 30 days of its receipt of such statement.
- 3.3 Payment of Fees. Unless otherwise specified in Exhibit A or in an Additional Work Authorization, invoices are to be submitted monthly, subject to the terms of this Agreement, are payable by Customer within thirty (30) days of receipt thereof by Customer. Customer will pay Provider in US dollars, as invoiced by Provider. Additional charges may apply if Customer requests services that are performed outside contracted hours or are beyond the normal coverage for the particular service. For invoices not paid within thirty (30) days of the invoice date, Provider reserves the right to charge Customer a late penalty charge of ten percent (10%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, Provider may, without waiving any other rights or remedies to which it may be entitled, decide to terminate the Agreement and/or seek collection of all amounts due, including reasonable legal fees and costs of collection. We impose a surcharge on credit cards that is not greater than our cost of acceptance. There is a 3% surcharge fee applied for appropriate credit card transactions, we do not impose a fee on debit cards.
- 3.4 Additional Fees/Taxes. Prices are exclusive of all country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes. Taxes imposed on Provider (other than taxes related to Provider’s income) in connection with the Services purchased under this Agreement will be paid by Customer and will appear as separate items on Provider’s invoices.
3.5 Supplemental Terms for Microsoft Customer Agreement
- 3.5.1 Online Services Renewal for Microsoft Customer Agreement. Online Services with auto-renewal will automatically renew the day after their subscription term expires, unless Customer chooses not to renew by opting out of auto-renewal at least 30 days before the subscription expires by updating the auto-renewal setting in Microsoft Admin Center or by contacting their reseller. Online services subscriptions for government and academic customers will not be automatically renewed unless Customer chooses the auto-renewal option.
- 3.5.2 Cancellation Policy for Microsoft Customer Agreement. Certain subscriptions must be canceled within 7 days of the subscription start date to be eligible for a prorated credit or refund for unused time, calculated on a daily basis. No credits or refunds will be issued for such subscriptions canceled after 7 days of the subscription start date. See Cancel your subscription (https://docs.microsoft.com/microsoft-365/commerce/subscriptions/cancel-your-subscription) for details.
- 3.5.3 Coterminosity for Microsoft Customer Agreement. Coterminosity allows a Customer to align the end date (or anniversary date for a multi-year subscription) of a new subscription to an existing subscription. Coterminous subscriptions must all belong to the same Customer. Coterminated end dates can be applied to monthly, annual, and three-year term subscriptions, however, new annual and three-year term subscriptions may not be coterminated with an existing monthly subscription. Charges for the first term of each coterminated subscription will be prorated based on the number of months in the initial term.
Coterminosity may not be applied to third-party, Azure, or trial subscriptions. The coterminosity option does not apply when adding a seat to a current subscription, upgrading a seat to a new or existing subscription, mid-term adjustment of subscription durations, or adjustment of subscription end dates after coterminosty is turned on.
4. Proprietary Rights and Confidentiality
- 4.1 Proprietary Provisions
(a) During the term of this agreement, the Contracting Parties will have access to and become familiar with various trade secrets and other proprietary or confidential information and compilations of information, records, and specifications, owned by the other Contracting Party and regularly used in the operation of the business of the other Contracting Party, including, but not limited to, compensation data, customer lists, customer preferences, financial information, marketing strategies, pending projects and proposals, supply/sales contracts, research and development strategies, technological data, technological prototypes, computer software analysis documentation, design documentation, software, hardware, source code, forms, pricing formulas, financial information and all accounting records (“Proprietary Information”). Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential.
(b) Neither Contracting Party shall use Proprietary Information except as required in the performance of the Contracting Party’s duties hereunder. The Contracting Parties will take all reasonable measures to maintain the confidentiality of the Proprietary Information. The existence and substance of this Agreement shall be included as Proprietary Information. Provider will not disclose all or any part of the Proprietary Information to any third party without the prior written consent of Customer, unless required to do so by court order, subpoena, the Internal Revenue Service, a governmental authority, or any other legal authority. Provider may use Customer’s name as a reference.
(c) Both parties agree that, except as directed by the other party, or as provided in this paragraph, neither party will at any time during or after the term of this agreement, disclose any Proprietary Information to any person, or entity. Upon termination of this agreement, both parties shall destroy or turn over to the other party all documents, papers, and other matter in such party’s possession or under such party’s control that contain or relate to such Proprietary Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential.
(d) Subject to payment in full for the applicable Services, and subject to other provisions in this Agreement, all right, title and interest in and to any programs, systems, data or materials created or prepared by Provider under this Agreement, including, without limitation, any copyrights, patents, trade secret, and other intellectual or industrial property rights therein, are and shall be held by Customer, and shall be considered “works made for hire”, as that term is defined in The Copyright Act of 1976, as amended.
(e) It is understood, however, that the restrictions in this Paragraph 4, shall not apply to any portion of the Proprietary Information that falls within any of the following categories:
(i) Proprietary Information that is already lawfully known to or independently developed by the receiving party; or
(ii) Proprietary Information obtained after the date hereof by the receiving party from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation with respect to such information; or
(iii) Proprietary Information which is or becomes part of the public domain through no fault of the receiving party or its employees; or
(iv) is required to be disclosed by law, regulation or governmental order.
(f) Provider agrees to restrict access to all of the Proprietary Information within its company to authorized employees or independent contractors who
(i) require such information in connection with their activities as contemplated by this Agreement, and
(ii) have agreed with Provider to maintain the confidential nature of all proprietary information, including that of third parties, received by them in the course of their employment or engagement.
(g) Upon termination of this Agreement, or earlier upon either Contracting Parties’ written request, the other Contracting Party shall deliver all items containing any Proprietary Information to the requesting Contracting Party or make such other disposition thereof as the requesting Contracting Party may direct.
(h) In order to enable Customer to disclose technology or software to Provider in conformity with the requirements of Part 740.3 (d) of the U.S. Department of Commerce’s Export Administration Regulations, Provider hereby gives assurance to Customer that it will not, without a license or a License Exception from the U.S. Department of Commerce’s Bureau of Export Administration, reexport or release the technology and/or software, including source code, to any one of the countries listed in Country Groups D:1 or E:2 of Supplement No. 1 to Part 740 of the Export Administration Regulations or to a national of any one of those countries. Such countries are currently: Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, the People’s Republic of China, Cuba, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Laos, Latvia, Libya, Lithuania, Moldova, Mongolia, N. Korea, Romania, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and Vietnam.
(i) The Contracting Parties acknowledges that they have access to the other Contracting Party’s Proprietary Information and that such access constitutes good and sufficient considerations for the imposition of the foregoing restrictive covenants.
- 4.2 Third Party Proprietary Rights. Provider and Customer hereby represent and warrant to one another that their respective activities in connection with the performance of the Services hereunder will not violate any proprietary rights of third parties, including, without limitation, patents, copyrights, or trade secrets, and that neither party’s activities in connection with the performance of the Services hereunder will violate any contractual obligations or confidential relationships which either Provider or Customer may have to/with any third party.
- 4.3 Possession, Custody or Control of Customer’s Proprietary Information or Data
(a) It is initially agreed that Provider may assign the performance of any portion of this agreement without the prior express written consent of the other Contracting Party.
(b) During the term of this agreement both Contracting Parties, or agents or sub-Providers of the Contracting Parties (where assignment is permitted), may have possession, custody or control of Proprietary Information or other data belonging to the other Contracting Party. In this regard, it is agreed as follows:
(i) No Provider or agent of either Contracting Party will be allowed to have possession, custody or control of any Proprietary Information or other data of the other Contracting Party without first agreeing in writing with the other Contracting Party to be bound by the terms this agreement.
(ii) Upon written request from either Contracting Party, or the Contracting Party’s agents or sub-Providers, all Proprietary Information or other data belonging to the Contracting Party (together with all copies thereof) will be immediately returned to the requesting Contracting Party. It is further agreed that the existence of a dispute or claim of any kind or character with or involving either Contracting Party will not constitute a defense to the compliance with this paragraph.
5. General Terms
- 5.1 Independent Contractor Status. It is understood and agreed that in performing the Services for Customer hereunder, Provider shall act in the capacity of an independent contractor and not as an employee or agent of Customer. Provider agrees that unless otherwise instructed in writing it shall not represent itself as the agent or legal representative of Customer for any purpose whatsoever. Provider shall be solely responsible for the remuneration of and the payment of any and all taxes with respect to its employees and contractors and any claims with respect thereto and shall be solely responsible for the withholding and payment of all federal, state and local income taxes as well as the FICA and FUTA taxes applicable to it, its employees, and its contractors. Provider acknowledges that as an independent contractor, neither it nor any of its employees or contractors shall be eligible for any customer employee benefits, including, but not limited to, vacation, medical, dental or pension benefits.
- 5.2 Limitation of Liability. Excepting only the indemnification provisions in paragraph 5.12, in no event shall either party be liable to the other for consequential or exemplary damages.
- 5.3 Force Majeure. Neither Contracting Party hereto shall be liable for failure to perform any obligation under this agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and any other industry disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency or a Court of law. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other Contracting Party may terminate the agreement without penalty and without further notice.
- 5.4 Waiver. The failure of either Contracting Party to exercise any right provided for herein shall not be deemed a waiver of any other right hereunder.
- 5.5 Severability. In the event any one or more of the provisions of this agreement, or of any exhibit, is invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired.
- 5.6 Governing Law and Dispute Resolution. This agreement shall be subject to and governed by the laws of the State of Texas. The Contracting Parties agree that any controversy or claim arising out of or relating to this Agreement or performance hereunder, or any dispute arising out of the interpretation or application of this Agreement, which the contracting parties hereto are unable to resolve, shall be settled by arbitration in Dallas county, Texas, by a panel of three arbitrators, pursuant to the Texas Arbitration Act. IN NO EVENT OF DISPUTE OR INTERPRETATION, CAN ANY SETTLEMENT EXCEED ONE MONTH’S SERVICE CHARGES.
- 5.7 Entire Agreement. This agreement supersedes any and all agreements, either oral or in writing, between the parties hereto with respect to the rendering of the Services by Provider. This agreement contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this agreement shall be valid or binding.
- 5.8 Notices. To be effective, all communications and notices relating to this agreement are to be sent by first class mail, postage prepaid (effective three (3) days after postmark date) or delivered personally or by telecopy/fax (with first class mail, postage prepaid confirmation) to the respective addresses set forth in the opening paragraph hereof, or to such other addresses as either party shall designate by notice given as aforesaid.
- 5.9 Savings Clause. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
- 5.10 DISCLAIMER OF ALL WARRANTIES. PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, OR ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION PROVIDER MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION PROVIDER MAY PROVIDE. NOTHING IN THIS AGREEMENT OR ANY OTHER WRITTEN DOCUMENTATION OR ANY ORAL COMMUNICATIONS WITH CUSTOMER MAY ALTER THE TERMS AND CONDITIONS OF THIS PARAGRAPH.
- 5.11 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL PROVIDER BE LIABLE FOR ANY OF THE FOLLOWING; 1) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES; 2) SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO, PRODUCTS OR SYSTEMS BEING UNAVAILABLE FOR USE, LOST PROFITS OR SAVINGS OR LOST OR CORRUPTED DATA OR SOFTWARE, OR FOR ANY DAMAGES FOR PERSONAL INJURY, OR DEATH, WHETHER DIRECT, INDIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, OR ARISING OUT OF THE RESULTS OR OPERATION OF ANY SYSTEM RESULTING FROM IMPLEMENTATION OF ANY RECOMMENDED PLAN OR DESIGN, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBLITY OF THE DAMAGE, AND EVEN IF CUSTOMER ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THIS LIMITATION OF LIABILITY APPLIES TO ALL TYPES OF LEGAL THEORIES, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), PROFESSIONAL LIABILITY, PRODUCT LIABILITY, WARRANTY, OR ANYTHING ELSE. THIS LIMIT ALSO APPLIES TO ANY OF PROVIDER’S SUBCONTRACTORS, SUBSIDIARIES, PARENT COMPANIES OR ASSIGNS. IT IS THE MAXIMUM AMOUNT FOR WHICH PROVIDER IS RESPONSIBLE.
- 5.12 Indemnity
(a) Customer and Provider shall each indemnify and hold the other of them harmless from any and all claims and expenses, of any kind and character, resulting from their respective acts or omissions.
(b) Without limitation to the preceding subparagraph (a), both Contracting Parties further warrant and represent that they will not knowingly infringe upon any trademark rights, copyright, patent, trade secret or other property right in the performance of the Services. Customer warrants and agrees that they will defend any suit that may arise against the other Contracting Party, its employees, directors, officers or affiliates, resulting from such alleged infringement by the Customer. Moreover, the Customer, as outlined in this paragraph, will indemnify and hold the Provider, its employees, directors, officers or affiliates, harmless from any loss, including damages, costs and expenses (including attorneys’ fees) attributable to such alleged infringement by the Customer.
- 5.13 Section Headings. The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
- 5.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.