WARRANTIES & DISCLAIMER
9.1 Mutual Warranties. Each of Ultrasite and Customer represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.
9.2 Ultrasite Warranties. Ultrasite warrants that: (a) subject to an API Change, the functionality of the Enterprise Services will not be materially decreased during the term of the applicable Authorization Form; (b) to its knowledge, the Enterprise Services do not contain any malicious code or viruses; and (c) Ultrasite is an authorized reseller of any Partner Services sold to Customer in an Authorization Form.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER OUR ENTERPRISE SERVICES “AS IS” AND ARE NOT MAKING, AND TO THE GREATEST EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM, ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NON-INFRINGEMENT, THAT OUR ENTERPRISE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT OUR ENTERPRISE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE OUR ENTERPRISE SERVICES AT YOUR OWN RISK.
(b) UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
(c) WE ARE NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR THE CONTENT MADE AVAILABLE THROUGH THE ENTERPRISE SERVICES, INCLUDING CUSTOMER CONTENT, MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. Ultrasite DOES NOT CONTROL OR VET CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE ENTERPRISE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.4 Indemnification by Customer. Customer will defend, indemnify, and hold harmless Ultrasite, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: (a) alleging that Customer Content, Ads Content, or Submitted Content infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; (b) arising from Customer’s breach of Section 3.1; or (c) relating to, or arising from, Customer’s use of any Third-Party Services (including Customer’s breach of any terms or conditions applicable to any Third-Party Services).
9.5 Indemnification Procedure. The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.
LIMITATIONS OF LIABILITY
9.6 Maximum Liability. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.7 THROUGH 9.9, AND NOT INCLUDING CUSTOMER’S OBLIGATION TO PAY ALL FEES OWED TO Ultrasite HEREUNDER, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE ENTERPRISE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 9.7 EXCLUDES ANY FEES PAID BY CUSTOMER TO A THIRD PARTY OR FOR ANY PARTNER SERVICES, EVEN WHERE Ultrasite’S ENTERPRISE SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER SERVICES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.7 ALSO APPLY TO OUR AFFILIATES AND THE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF Ultrasite AND OUR AFFILIATES (THE “Ultrasite PARTIES”) AND TO CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY.
9.7 Excluded Damages.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE ENTERPRISE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.
(b) The Enterprise Services support multi-factor authentication, and the Acceptable Use Rules require you to maintain the confidentiality of your passwords or other login credentials for the Enterprise Services. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Ultrasite BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN IF: (A) THE UNAUTHORIZED ACCESS OR USE COULD HAVE BEEN PREVENTED THROUGH YOUR USE OF MULTI-FACTOR AUTHENTICATION; OR (B) YOU OR ANY OF YOUR AUTHORIZED USERS FAIL TO MAINTAIN THE CONFIDENTIALITY OF ANY PASSWORD OR OTHER LOGIN CREDENTIALS.
(c) WITHOUT LIMITING SECTION 9.8(b), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Ultrasite BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN, EXCEPT TO THE EXTENT Ultrasite’S BREACH OF THE ENTERPRISE SECURITY STANDARDS RESULTS IN THE UNAUTHORIZED DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION.
(d) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE ENTERPRISE SERVICE LEVEL AGREEMENT.
9.8 Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR (I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (III) WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.9 Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 9.7 THROUGH 9.9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Ultrasite WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.