Limitation of Liability Indemnification Warranties. a) You agree that your use of the Service is at your sole risk. You acknowledge that although the Service provides access to the Internet, the Internet is not owned, operated or managed by OC. b) OC DOES NOT WARRANT THE SERVICE WILL BE UNINTERRUPTED, AT ANY MINIMUM SPEED, OR ERROR FREE NOR MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. OC DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY PARTICULAR SPEED. THE SERVICE AND EQUIPMENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY OC, ITS EMPLOYEES, AFFILIATES, AGENTS, AND REPRESENTATIVES WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION. c) OC SHALL NOT BE LIABLE FOR ANY LOSS OF DATA OR DAMAGE TO HARDWARD THAT OCCURS DURING INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICE. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO COMPLETELY BACKUP YOUR COMPUTER PRIOR TO INSTALLATION. YOU FURTHER AGREE THAT OC AND ITS EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES ARE NOT RESPONSIBLE FOR ANY PROBLEMS WITH YOUR COMPUTER FOLLOWING THE INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICE. d) With the exception of payment of charges due under this Agreement, OC shall be excused from performance if its performance is prevented by acts or events beyond its reasonable control including but not limited to; accident, fire, severe weather and storms, earthquake or other natural occurrences; power failures; supplier shortages, nuclear or other civil or military emergencies; lockout, strike or other labor dispute, riot or civil commotion, vandalism, civil insurrection, government regulation, act of government, transmission failures in third party telecommunications networks utilized by OC, or any other equipment owned and maintained by others. e) OC makes no representation or warranty that any software or content installed on your computer(s) or downloaded from the Service does not contain a virus or other harmful feature and it is your sole responsibility to take appropriate precautions to protect any computer or other hardware of yours from damage to its software, files or data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Service if a virus is found to be present on your system. We are not required to provide you with any assistance in removal of the virus. If we decide, in our sole discretion, to install or run virus check software on your computer(s), we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your system. NEITHER OC NOR ITS AFFILIATES OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT. f) You acknowledge and agree that by using wireless equipment to connect to the Internet, whether OC’s wireless equipment or your own wireless equipment, your service may be impacted. Other wireless equipment such as but not limited to microwave ovens, cordless phones, infant monitors, wireless security cameras, wireless routers and other wireless networking equipment may cause interference that can affect the speed and quality of your service. The introduction of such devices in your residence &/or in the community is beyond OC’s control, and OC is not responsible for any such sources of interference or the effect they have on service speed and quality. g) You acknowledge that we may use the services, equipment and infrastructure and content of others in providing the Service and those third parties may provide components of the Service. We are not responsible for the performance (or non-performance) of such services, equipment, and infrastructure or content of others whether or not they constitute components of the Service. In addition, you understand that you will have access to the services and content of third parties through the Service, including without limitation that provided by content providers (whether or not accessible directly from the Service). Services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service) are not the responsibility of OC, and we shall have no liability with respect to such services, equipment, infrastructure and content. We do not endorse or warrant any third-party products, services or content that are distributed or advertised over the Service. h) YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSS OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING OC’S OR ITS SUBCONTRACTOR’S NEGLIGENCE, SHALL BE A REFUND OF ANY SERVICE CHARGES AND FEES PAID TO OC UP TO THE TIME THE DAMAGE IS DISCOVERED. OC AND ITS SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DAMAGES TO PROPERTY, OR LOSS OF BUSINESS. i) IN NO EVENT WILL OC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. j) YOU AGREE TO INDEMNIFY OC FOR ANY VIOLATION OF THIS AGREEMENT, THE AUP, OR APPLICABLE LAW THAT RESULTS IN LOSS TO OC OR THE BRINGING OF ANY CLAIM AGAINST OC BY ANY THIRD PARTY. YOU FURTHER AGREE TO PAY ANY DAMAGES AWARDED AGAINST OC, PLUS COSTS AND REASONABLE ATTORNEY FEES THAT IS A RESULT OF YOUR VIOLATION OF ANY PART OF THIS AGREEMENT OR AUP. k) The limitations on liability and the indemnification provisions expressed herein shall inure to the benefit of and apply to OC’s parent, subsidiary and affiliated companies, as well as to any agents, representatives or subcontractors performing work on behalf of OC. l) No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
Appears in 1 contract
Sources: Internet Service Agreement
Limitation of Liability Indemnification Warranties. a) You 3.1 The parties understand and agree that your use Provider is not an insurer and that insurance, if any, shall be obtained by Recipient and/or Recipient’s Subscribers and that amounts payable to Provider hereunder are based on the value of the Service is at your sole risk. You acknowledge that although the Service provides access services and scope of liability as herein set forth and are unrelated to the Internetvalue of any Subscriber’s property, any property of others located in or at Subscriber’s premises, or the Internet is not ownedrisk of loss associated with such premises. PROVIDER MAKES NO GUARANTY OR WARRANTY, operated or managed by OC.
b) OC DOES NOT WARRANT THE SERVICE WILL BE UNINTERRUPTED, AT INCLUDING ANY MINIMUM SPEED, OR ERROR FREE NOR MAKE ANY IMPLIED WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. OC DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY PARTICULAR SPEED. THE SERVICE AND EQUIPMENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE MONITORING SERVICES SUPPLIED WILL AVERT OR PREVENT OCCURRENCES, OR THE CONSEQUENCES ARISING THEREFROM, WHICH SUBSCRIBER’S SYSTEM OR PROVIDER’S SERVICE IS Intercompany Monitoring and Services Agreement (US - FINAL) INTENDED TO DETECT (such occurrences, including without limitation criminal break-ins, unauthorized intrusions, medical emergency activations or fires, hereinafter collectively referred to as “Detection Events”). NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY OC, ITS EMPLOYEES, AFFILIATES, AGENTS, AND REPRESENTATIVES WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
c) OC SHALL NOT BE LIABLE FOR ANY LOSS OF DATA OR DAMAGE TO HARDWARD THAT OCCURS DURING INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICE. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO COMPLETELY BACKUP YOUR COMPUTER PRIOR TO INSTALLATION. YOU FURTHER AGREE THAT OC AND ITS EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES ARE NOT RESPONSIBLE FOR ANY PROBLEMS WITH YOUR COMPUTER FOLLOWING THE INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICE.
d) With Provider does not assume the exception risk of payment of charges due under this Agreement, OC shall be excused from performance if its performance is prevented by acts injury or events beyond its reasonable control including but not limited to; accident, fire, severe weather and storms, earthquake loss to which Subscribers’ persons or other natural occurrences; power failures; supplier shortages, nuclear or other civil or military emergencies; lockout, strike or other labor dispute, riot or civil commotion, vandalism, civil insurrection, government regulation, act of government, transmission failures in third party telecommunications networks utilized by OCproperty, or any the persons or property of others, may be subject if a Detection Event occurs and the allocation of such risk remains with Subscriber, not Provider. Accordingly, Recipient and/or Recipient’s Subscriber agrees that Provider shall have no liability for loss, damage or injury due directly or indirectly to Detection Events, or the consequences therefrom, and Recipient and/or Recipient’s Subscriber releases and waives for itself and their respective insurers all subrogation and other equipment owned and maintained by others.
e) OC makes no representation or warranty that any software or content installed on your computer(s) or downloaded rights to recover from the Service does not contain a virus or other harmful feature and it is your sole responsibility to take appropriate precautions to protect any computer or other hardware of yours from damage to its software, files or data Provider as a result of paying any such virus claim for loss, damage or other harmful featureinjury arising from or due to a Detection Event. We mayIf notwithstanding the foregoing, but are not required toProvider is found liable for loss, terminate all damage or injury under any portion of the installation or operation legal theory due to any failure of the Service if a virus is found to be present on your system. We are not required to provide you with any assistance in removal of the virus. If we decide, in our sole discretion, to install or run virus check software on your computer(s), we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your system. NEITHER OC NOR ITS AFFILIATES OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
f) You acknowledge and agree that by using wireless equipment to connect to the Internet, whether OC’s wireless equipment or your own wireless equipment, your service may be impacted. Other wireless equipment such as but not limited to microwave ovens, cordless phones, infant monitors, wireless security cameras, wireless routers and other wireless networking equipment may cause interference that can affect the speed and quality of your service. The introduction of such devices in your residence &/or in the community is beyond OC’s control, and OC is not responsible for any such sources of interference or the effect they have on service speed and quality.
g) You acknowledge that we may use the services, equipment and infrastructure and content of others in providing the Service and those third parties may provide components of the Service. We are not responsible for the performance (or non-performance) of such services, equipment, and infrastructure or content of others whether or not they constitute components of the Service. In addition, you understand that you will have access to the services and content of third parties through the Service, including without limitation that provided by content providers (whether or not accessible directly from the Service). Services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service) are not the responsibility of OC, and we shall have no liability with respect to such servicesa Detection Event, equipmentits liability shall be limited to a sum equal to $2,500.00 as agreed upon damages and sole remedy, infrastructure and contentnot as a penalty. We do not endorse It is mutually acknowledged and agreed this will be the sole remedy because it is impractical and extremely difficult to determine the actual damages, if any, which may result from Provider’s failure to perform any of its obligations under this Agreement and the provisions of this Section 3 shall apply no matter how the loss, damage or warrant injury or other consequence occurs, even if due to Provider’s performance or nonperformance of its obligations under this Agreement or from negligence, active or otherwise, strict liability, violation of any third-party productsapplicable consumer protection law or any other alleged fault on the part of Provider, services its agents or content employees. If any other person, including Subscriber’s and/or Recipient’s subrogating insurer, makes any claim or files any lawsuit against Provider in any way relating to the Services that are distributed or advertised over the Service.
h) YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSS OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING OC’S OR ITS SUBCONTRACTOR’S NEGLIGENCE, SHALL BE A REFUND OF ANY SERVICE CHARGES AND FEES PAID TO OC UP TO THE TIME THE DAMAGE IS DISCOVERED. OC AND ITS SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DAMAGES TO PROPERTY, OR LOSS OF BUSINESS.
i) IN NO EVENT WILL OC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
j) YOU AGREE TO INDEMNIFY OC FOR ANY VIOLATION OF THIS AGREEMENT, THE AUP, OR APPLICABLE LAW THAT RESULTS IN LOSS TO OC OR THE BRINGING OF ANY CLAIM AGAINST OC BY ANY THIRD PARTY. YOU FURTHER AGREE TO PAY ANY DAMAGES AWARDED AGAINST OC, PLUS COSTS AND REASONABLE ATTORNEY FEES THAT IS A RESULT OF YOUR VIOLATION OF ANY PART OF THIS AGREEMENT OR AUP.
k) The limitations on liability and the indemnification provisions expressed herein shall inure to the benefit of and apply to OC’s parent, subsidiary and affiliated companies, as well as to any agents, representatives or subcontractors performing work on behalf of OC.
l) No provision subject of this Agreement provides Agreement, then Recipient shall indemnify, defend and hold Provider harmless from any person and all such claims and lawsuits including the payment of all damages, expenses, costs and reasonable attorneys’ fees. No suit or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or action shall be brought against Provider more than one (1) year after the accrual of the cause of action or creates any other third party beneficiary rightsthereof.
Appears in 1 contract
Sources: Intercompany Monitoring and Service Agreement (ADT Corp)
Limitation of Liability Indemnification Warranties. a) You 3.1 The parties understand and agree that your use Provider is not an insurer and that insurance, if any, shall be obtained by Recipient and/or Recipient’s Subscribers and that amounts payable to Provider hereunder are based on the value of the Service is at your sole risk. You acknowledge that although the Service provides access services and scope of liability as herein set forth and are unrelated to the Internetvalue of any Subscriber’s property, any property of others located in or at Subscriber’s premises, or the Internet is not ownedrisk of loss associated with such premises. PROVIDER MAKES NO GUARANTY OR WARRANTY, operated or managed by OC.
b) OC DOES NOT WARRANT THE SERVICE WILL BE UNINTERRUPTED, AT INCLUDING ANY MINIMUM SPEED, OR ERROR FREE NOR MAKE ANY IMPLIED WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. OC DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY PARTICULAR SPEED. THE SERVICE AND EQUIPMENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE MONITORING SERVICES SUPPLIED WILL AVERT OR PREVENT OCCURRENCES, Intercompany Monitoring and Services Agreement (Canada FINAL) OR THE CONSEQUENCES ARISING THEREFROM, WHICH SUBSCRIBER’S SYSTEM OR PROVIDER’S SERVICE IS INTENDED TO DETECT (such occurrences, including without limitation criminal break-ins, unauthorized intrusions, medical emergency activations or fires, hereinafter collectively referred to as “Detection Events”). NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY OC, ITS EMPLOYEES, AFFILIATES, AGENTS, AND REPRESENTATIVES WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
c) OC SHALL NOT BE LIABLE FOR ANY LOSS OF DATA OR DAMAGE TO HARDWARD THAT OCCURS DURING INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICE. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO COMPLETELY BACKUP YOUR COMPUTER PRIOR TO INSTALLATION. YOU FURTHER AGREE THAT OC AND ITS EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES ARE NOT RESPONSIBLE FOR ANY PROBLEMS WITH YOUR COMPUTER FOLLOWING THE INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICE.
d) With Provider does not assume the exception risk of payment of charges due under this Agreement, OC shall be excused from performance if its performance is prevented by acts injury or events beyond its reasonable control including but not limited to; accident, fire, severe weather and storms, earthquake loss to which Subscribers’ persons or other natural occurrences; power failures; supplier shortages, nuclear or other civil or military emergencies; lockout, strike or other labor dispute, riot or civil commotion, vandalism, civil insurrection, government regulation, act of government, transmission failures in third party telecommunications networks utilized by OCproperty, or any the persons or property of others, may be subject if a Detection Event occurs and the allocation of such risk remains with Subscriber, not Provider. Accordingly, Recipient and/or Recipient’s Subscriber agrees that Provider shall have no liability for loss, damage or injury due directly or indirectly to Detection Events, or the consequences therefrom, and Recipient and/or Recipient’s Subscriber releases and waives for itself and their respective insurers all subrogation and other equipment owned and maintained by others.
e) OC makes no representation or warranty that any software or content installed on your computer(s) or downloaded rights to recover from the Service does not contain a virus or other harmful feature and it is your sole responsibility to take appropriate precautions to protect any computer or other hardware of yours from damage to its software, files or data Provider as a result of paying any such virus claim for loss, damage or other harmful featureinjury arising from or due to a Detection Event. We mayIf notwithstanding the foregoing, but are not required toProvider is found liable for loss, terminate all damage or injury under any portion of the installation or operation legal theory due to any failure of the Service if a virus is found to be present on your system. We are not required to provide you with any assistance in removal of the virus. If we decide, in our sole discretion, to install or run virus check software on your computer(s), we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your system. NEITHER OC NOR ITS AFFILIATES OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
f) You acknowledge and agree that by using wireless equipment to connect to the Internet, whether OC’s wireless equipment or your own wireless equipment, your service may be impacted. Other wireless equipment such as but not limited to microwave ovens, cordless phones, infant monitors, wireless security cameras, wireless routers and other wireless networking equipment may cause interference that can affect the speed and quality of your service. The introduction of such devices in your residence &/or in the community is beyond OC’s control, and OC is not responsible for any such sources of interference or the effect they have on service speed and quality.
g) You acknowledge that we may use the services, equipment and infrastructure and content of others in providing the Service and those third parties may provide components of the Service. We are not responsible for the performance (or non-performance) of such services, equipment, and infrastructure or content of others whether or not they constitute components of the Service. In addition, you understand that you will have access to the services and content of third parties through the Service, including without limitation that provided by content providers (whether or not accessible directly from the Service). Services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service) are not the responsibility of OC, and we shall have no liability with respect to such servicesa Detection Event, equipmentits liability shall be limited to a sum equal to $2,500.00 as agreed upon damages and sole remedy, infrastructure and contentnot as a penalty. We do not endorse It is mutually acknowledged and agreed this will be the sole remedy because it is impractical and extremely difficult to determine the actual damages, if any, which may result from Provider’s failure to perform any of its obligations under this Agreement and the provisions of this Section 3 shall apply no matter how the loss, damage or warrant injury or other consequence occurs, even if due to Provider’s performance or nonperformance of its obligations under this Agreement or from negligence, active or otherwise, strict liability, violation of any third-party productsapplicable consumer protection law or any other alleged fault on the part of Provider, services its agents or content employees. If any other person, including Subscriber’s and/or Recipient’s subrogating insurer, makes any claim or files any lawsuit against Provider in any way relating to the Services that are distributed or advertised over the Service.
h) YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSS OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING OC’S OR ITS SUBCONTRACTOR’S NEGLIGENCE, SHALL BE A REFUND OF ANY SERVICE CHARGES AND FEES PAID TO OC UP TO THE TIME THE DAMAGE IS DISCOVERED. OC AND ITS SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DAMAGES TO PROPERTY, OR LOSS OF BUSINESS.
i) IN NO EVENT WILL OC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
j) YOU AGREE TO INDEMNIFY OC FOR ANY VIOLATION OF THIS AGREEMENT, THE AUP, OR APPLICABLE LAW THAT RESULTS IN LOSS TO OC OR THE BRINGING OF ANY CLAIM AGAINST OC BY ANY THIRD PARTY. YOU FURTHER AGREE TO PAY ANY DAMAGES AWARDED AGAINST OC, PLUS COSTS AND REASONABLE ATTORNEY FEES THAT IS A RESULT OF YOUR VIOLATION OF ANY PART OF THIS AGREEMENT OR AUP.
k) The limitations on liability and the indemnification provisions expressed herein shall inure to the benefit of and apply to OC’s parent, subsidiary and affiliated companies, as well as to any agents, representatives or subcontractors performing work on behalf of OC.
l) No provision subject of this Agreement provides Agreement, then Recipient shall indemnify, defend and hold Provider harmless from any person and all such claims and lawsuits including the payment of all damages, expenses, costs and reasonable legal fees. No suit or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or action shall be brought against Provider more than one (1) year after the accrual of the cause of action or creates any other third party beneficiary rightsthereof.
Appears in 1 contract
Sources: Intercompany Monitoring and Service Agreement (ADT Corp)