Except as expressly indicated in this Agreement and subject to any statutory warranties that cannot be excluded, Seller makes no other express or implied warranties whatsoever, including without limitation, warranties of merchantability, fitness for a particular purpose, or that the Service will meet Buyer’s requirements. Furthermore, Seller hereby disclaims any warranties pertaining to software up-time, cellular up-time, and data accuracy. Finally, “real-time” as pertains to the Service could, at times, mean up to a 5-minute delay in data being received by Buyer.
2.1 “Confidential Information” means any information prepared or delivered to the receiving party by the disclosing party or its representatives (including information or data received by the disclosing party from a third party and as to which the disclosing party has confidentiality obligations), that is: (i) is marked or designated by the disclosing party as confidential; (ii) known to the receiving party, or should be known to a reasonable person given the facts and circumstances of the disclosure, as being treated as confidential or proprietary by the disclosing party.
2.2 Confidential Information shall not include to information that is: (i) made available to the public other than by breach of this Agreement; (ii) otherwise rightfully received by the non-disclosing party without obligations of confidentiality; (iii) known to the non-disclosing party before receiving the Confidential Information from the disclosing party under this or any prior agreement of the parties; or (iv) disclosed by the disclosing party to a third party without restrictions.
2.3 Each party shall: (i) keep the Confidential Information of the other party confidential; (ii) take reasonable precautions not to disclose copy, distribute or otherwise disseminate the Confidential Information to any third parties; (iii) disclose the Confidential Information only to those employees, agents and subcontractors who have a legitimate business reason to for the performance of obligations under this Agreement and who are subject confidentiality restrictions no less strict than those contained in this Agreement. Upon the termination, cancellation or expiration of this Agreement for any reason, all Confidential Information, together with any copies that may be authorized herein, shall be returned to the disclosing party or destroyed by the non-disclosing party.
2.4 The provisions of this Section shall survive for five (5) years beyond the expiration, non-renewal, or termination of this Agreement.
3.1 Seller will release, hold harmless and indemnify Buyer from any third-party claim that the Service infringes such third party’s IP Rights, excluding any claim based on modification(s) made to the Equipment by Buyer. In the event of a claim, Seller may, at its option modify the Service so that it becomes non-infringing, obtain a license from the third-party at no cost to Buyer, or terminate Buyer’s access and refund any pre-paid fees.
3.2 Buyer agrees to release, hold harmless and indemnify Seller and its officers, agents, employees, advertisers, licensors, suppliers or partners from and against (i) any third party claim arising from or in any way related to your use of the Service or your violation of this Agreement, (ii) anything pertaining to on Site installation of Equipment, or any claims arising from a malfunction of the Equipment, and (iii) any claims, demands and all losses, damages, rights, and actions of any kind including, without limitation, financial losses, personal injuries, death, and property damage, that is either directly or indirectly related to or arising from Buyer’s use of the Equipment or the Services, or as a result of Buyer’s decisions or actions made relying upon the data or Services.
3.3 The indemnified party must notify the indemnifying party promptly in writing of any claim for indemnification; provided that the failure to notify shall not excuse the indemnifying party of its obligations except to the extent such failure materially prejudices the indemnifying party. The indemnified party shall provide reasonable assistance to the indemnifying party at the indemnifying party’s expense. The indemnifying party shall control the defense and settlement of such claim; provided, that the indemnified party may participate in the defense with counsel of its choosing and at its sole expense and the indemnifying party shall not enter into any settlement other than payment of monies, without the indemnified party’s prior written consent.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY IS INFORMED OF THEIR POSSIBILITY (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY). EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF FEES PAID BY BUYER HEREUNDER. THE FOREGOING SHALL NOT LIMIT BUYER’S PAYMENT OBLIGATIONS FOR UNPAID FEES.
Buyer agrees to comply with all laws, regulations and codes that are applicable to the business that Buyer transacts. Buyer agrees to indemnify and hold Buyer harmless for all liability or damages caused by Buyer’s failure to comply with the terms of this provision.
Any notices required or permitted hereunder shall be given to the appropriate party at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing.
7.1 Governing Law; Consent to Jurisdiction. This agreement will be governed by and construed according to the laws of the state of Colorado, as such laws are applied to agreements entered into and to be performed entirely within Colorado between Colorado residents. Vendor hereby (i) irrevocably and expressly consents to and submit to the exclusive jurisdiction and venue of the state and federal courts located in Colorado for any lawsuit or other action filed there against Vendor by the Buyer arising from or related to this Agreement and (ii) waive any objection Vendor may now or hereafter have as to the venue of any such action or proceeding brought in such courts or that such courts are an inconvenient forum.
7.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
7.3 Successors and Assigns. This Agreement will be binding upon Buyer, its successors and assigns and will be for the benefit of the Buyer, its successors, and its assigns.
7.4 Survival. The provisions of this Agreement shall survive the termination and the assignment of this Agreement by the Buyer to any successor in interest or other assignee.
7.5 Waiver. No waiver by the Buyer of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Buyer of any right under this Agreement shall be construed as a waiver of any other right. The Buyer shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
7.6 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the Parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the Party to be charged.