IgnitePOST Services Agreement Disclaimer
a) Both Parties acknowledges that it may have access to certain confidential information concerning business plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Both Parties agree to treat such Confidential Information in the same manner as it treats its own similar proprietary information and agrees that it will not use in any way, for its own account or the account of any third Party, except as expressly permitted by this Agreement, nor disclose to any third Party (except as required by law or to that Party’s attorneys, accountants and other advisors as reasonably necessary), any Confidential Information and will take reasonable precautions to protect the confidentiality of such information.
b) Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving Party prior to the receipt of such information directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the receiving Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement ; or (iv) is independently developed .
The provisions of this Section shall survive the termination or cancellation of this Agreement.
a) Both Parties shall indemnify, defend and hold each other, its officers, directors, employees, attorneys, affiliates, subsidiaries and their successors and assigns harmless from any loss, claim, damage, reasonable cost or expense, including but not limited to reasonable attorney’s fees and costs, that arise out of or result from: (a) either Party’s or its officers, directors, employees, agents, attorneys, affiliates and subsidiaries or successors and assigns gross negligent or intentional misconduct; and/or (b) the breach of this Agreement by either Party.
b) Neither Party will be required to indemnify the other for losses resulting in whole or in part from the other’s negligence or other fault. Either Party shall notify the other within ninety (90) days of receipt of any claim or lawsuit for which it seeks indemnity pursuant to this provision, and shall have the right to control the defense of any such claim or lawsuit. If either Party fails to promptly notify the other of any such action or fails to cooperate fully in the defense of such action, the other Party shall be relieved of its indemnification obligations hereunder.
The defense and indemnification requirements of this Section shall survive the termination or cancellation of this Agreement.
LIMITATIONS OF USE.
Neither Party shall directly or indirectly disassemble, decompile, reverse engineer the others’ products, applications or system, in whole or in part, create competing services, or allow or permit any third Party to do any of the foregoing. Both Parties agree that it shall only use the services, products, applications and/or systems as defined during initial and subsequent Services roll out.
LIMITATION OF WARRANTIES. IGNITEPOST represents and warrants that it owns and/or has the rights to the intellectual property relating to the IGNITEPOST applications. IGNITEPOST MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO INFORMATION DERIVED FROM THE IGNITEPOST APPLICATIONS OR ANY INFORMATION IGNITEPOST MAY FURNISH TO CLIENT OR ANY CLIENT CUSTOMER AS A RESULT OF THIS AGREEMENT. EXCEPT FOR CLIENT’S INFRINGEMENT OF IGNITEPOST’S INTELLECTUAL PROPERTY PURSUANT TO SECTION 6 (Limitations of Use) OF THIS AGREEMENT, NEITHER PARTY SHALL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS WHICH EITHER PARTY OR EITHER PARTY’S CUSTOMERS MAY INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING UPON THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY PROBLEMS BEYOND ITS CONTROL, INCLUDING THE FOREGOING AND/OR ANY PROBLEMS WITH ITS INTERNET CONNECTION OR INTERNET SERVICE PROVIDER.
DISCLAIMER OF WARRANTIES. THE PRODUCTS AND ANY AND ALL SERVICES PROVIDED BY IGNITEPOST UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, VISUAL INFORMATION AND DATA AND/OR ANY OTHER INFORMATION PROVIDED IN CONNECTION WITH THE SERVICES, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, IGNITEPOST EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO (i) A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 4 (Confidential Information), (ii) DAMAGES INCLUDED IN CLAIMS THAT ARE THE SUBJECT OF A PARTY’S OBLIGATIONS UNDER SECTION 5 (Indemnification), AND (iii) DAMAGES ASSOCIATED WITH INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT. THE FOREGOING EXCLUSION SHALL APPLY REGARDLESS OF WHETHER CLAIMS BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE FORESEEABLE, WHETHER THEY ARE BROUGHT UNDER TORT, NEGLIGENCE, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER ANY REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
FORCE MAJEURE. Neither Party is liable for, and shall not be considered in default or breach of the Agreement on account of any delay or failure to perform as required by the Agreement, as a result of any causes or conditions that are beyond such Party's reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence, provided that the affected Party shall use best efforts to resume normal performance.
RELATIONSHIP OF THE PARTIES. CLIENT and IGNITEPOST are independent organizations, and nothing in the Agreement will create any other relationship between the Parties including, but not limited to, any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship between principle and agent. Neither CLIENT nor IGNITEPOST will have the power to bind the other or incur obligations on the other's behalf.
ASSIGNMENT. Neither IGNITEPOST nor CLIENT shall assign or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of the other Party, but such consent will not be unreasonably withheld.
GOVERNING LAW. This Agreement will be governed by, construed under and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law provisions.
NOTICES. Any notices required by this Agreement shall be given to the appropriate Party specified in the signature page hereof. Such notice shall be deemed given upon personal delivery to the appropriate address or three (3) days after the date of mailing if sent by certified or registered mail. Notice may also be provided by electronic means including e-mail and facsimile provided such means provides for electronic verification of receipt of such notice.
MISCELLANEOUS. No waiver of any of the provisions of the Agreement shall be effective unless made in writing and signed by both Parties. No waiver by either Party of any breach of any provision of the Agreement shall be construed as a waiver of any subsequent breach or as a continuing waiver of such breach of the Agreement. Failure to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other breach.
The provisions of the Agreement shall be severable. If any provision of the Agreement is held invalid or unenforceable then the application of the remaining provisions of the Agreement shall not be affected by such application.