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Meritage in accordance with this Agreement of Customer Information, Customer Data or Customer Confidential
<br />Information infringes or misappropriates the Intellectual Property Rights of, or has caused harm or damage to, a third
<br />party.
<br />b. Limitation of Liability. EXCEPT TO THE EXTENT ARISING FROM A BREACH OF CONFIDENTIALITY OR OF SECTIONS 2.2 OR
<br />7, OR AS ARISING UNDER OBLIGATIONS OF INDEMNIFICATION, IN NO EVENT WILL EITHER PARTY, INCLUDING ITS
<br />VENDORS, HOSTING SERVICE PROVIDERS, OR ITS LICENSORS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
<br />INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION PROCUREMENT
<br />OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION) HOWEVER
<br />CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING ACTIVE
<br />AND PASSIVE NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE
<br />SITES OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT TO THE EXTENT ARISING FROM A
<br />BREACH OF CONFIDENTIALITY OR OF SECTIONS 2.2 OR 7, OR AS ARISING UNDER OBLIGATIONS OF INDEMNIFICATION
<br />OR CUSTOMER’S OBLIGATION TO MAKE PAYMENTS, EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION
<br />WITH THIS AGREEMENT, THE SITES OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT
<br />EXCEED THE FEES PAID TO MERITAGE HEREUNDER AS OF THE DATE OF THE ACT OR OMISSION GIVING RISE TO THE
<br />LIABILITY. EACH PARTY ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS
<br />AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS
<br />LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT
<br />PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
<br />12. General Provisions.
<br />a. Notwithstanding anything else, Customer may not provide to any person an export or re‐export or allow the export or
<br />re‐export of the Services or any software or anything related thereto or any direct product thereof, in violation of any
<br />restrictions, laws or regulations of the United States Department of Commerce, the United States Department of
<br />Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
<br />b. This Agreement will be binding upon the parties to this Agreement and their permitted successors and assigns. Neither
<br />party may assign, delegate or transfer this Agreement or any of its rights or obligations (in whole or in part) under this
<br />Agreement (whether by operation of law or otherwise) to any third party without the other party’s prior written
<br />consent. Notwithstanding the foregoing, either party may assign this agreement to any successor in interest to such
<br />party’s stock, assets or business, whether by way of sale, merger, reorganization or other form of transaction, provided
<br />that such party provides the other party with notice of such assignment and that the successor in interest agreed in
<br />advance to assume all right, obligations, liabilities, and responsibilities of the assigning party under this Agreement. Any
<br />assignment or transfer in violation of the foregoing shall be null and void.
<br />c. Nothing in this Agreement confers or is intended to confer, expressly or by implication, any rights or remedies upon
<br />any person or entity not a party to this Agreement.
<br />d. This Agreement shall be governed by and construed in accordance with the laws of Colorado without regard to conflicts
<br />of law principles. Customer agrees that it will only bring any action or proceeding arising from or relating to this
<br />Agreement in a federal court in the District of Colorado or in state court in Larimer County, Colorado, and Customer
<br />irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any
<br />action or proceeding brought in such courts by Meritage.
<br />e. The parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and
<br />neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
<br />f. Any notice to the other party required or allowed under this Agreement must be delivered in writing by express courier,
<br />personal delivery, or by certified mail, postage pre‐paid to the address for the party listed in the first paragraph of this
<br />Agreement.
<br />g. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will
<br />be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under
<br />applicable law and the remaining provisions of this Agreement will continue in full force and effect.
<br />h. Meritage may use Customer’s name as a reference and publicize Customer as a customer of Meritage.
<br />i. Unless otherwise amended as provided herein, this Agreement will exclusively govern Customer’s access to and use of
<br />the Services and the Sites and is the complete and exclusive understanding and agreement between the parties, and
<br />supersedes any oral or written proposal, agreement or other communication between the parties, regarding
<br />Customer’s access to and use of the Services and the Sites. This Agreement may be amended or modified only by a
<br />writing signed by both parties.
<br />j. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement
<br />on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
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