6. Representations and Warranties.
- a) Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party; (ii) it has obtained all applicable rights, licenses, consents, permissions, and waivers necessary to meet its obligations under this Agreement; and (iii) it is in compliance with, and shall not violate, any applicable law or regulation in connection with its performance under this Agreement.
- b) Mutual Representations and Warranties. Each party represents and warrants that: (i) it will comply with all applicable privacy and data protection laws and regulations applicable to the Products; and (ii) it has provided all notices to, and obtained all consents, authorizations, permissions from, third parties that are required to grant the other party the rights, titles, and interests granted in this Agreement with respect to the Products and Customer Data.
7. Limitation of Liability.
- c) Disclaimers. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, VIVALINK DISCLAIMS ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SUPPLIERS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE VIVALINK MATERIALS OR ANY PORTION THEREOF, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIVALINK DOES NOT WARRANT THAT ANY USE OF THE PRODUCTS OR PRODUCT SOFTWARE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS OR HARMFUL COMPONENTS. VIVALINK DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR PRODUCT SOFTWARE OR ANY PORTION THEREOF WILL BE APPROVED OR ACCEPTED BY ANY GOVERNMENTAL OR REGULATORY BODY OR THAT ANY SUCH APPROVAL WILL NOT BE REVOKED. VIVALINK DOES NOT GUARANTEE ANY SPECIFIC RESULTS OF ANY USE OF THE PRODUCTS OR ANY PORTION THEREOF. NO ADVICE OR INFORMATION THE COMPANY OBTAINS FROM VIVALINK NOT EXPRESSLY SET FORTH IN THIS AGREEMENT WILL CREATE ANY WARRANTY. COMPANY UNDERSTANDS AND AGREES THAT COMPANY TAKES COMPLETE RESPONSIBILITY FOR ITS USERS’ USE OF THE PRODUCTS OR ANY PORTION THEREOF AND ANY USE IS AT THE COMPANY’S AND ITS USER’S OWN DISCRETION AND RISK.
EXCEPT FOR BREACH OF THE PROPRIETARY RIGHTS TERMS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, AND ANY CLAIMS ARISING OUT OF THIS AGREEMENT WHETHER ARISING OUT OF A BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST REVENUES, PROFITS, SAVINGS OR BUSINESS) OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR BREACH OF PROPRIETARY RIGHTS TERMS HEREIN, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE COMPANY OR ANY OTHER PARTY UNDER THIS AGREEMENT WHETHER ARISING OUT OF A BREACH OF CONTRACT, BREACH OF WARRANTY, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID OR PAYABLE TO VIVALINK UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- a) Governing Law. This Agreement will be governed by California law (without giving effect to its conflicts of laws principles the result of which would permit the application of a law other than United States federal law or California law to this Agreement). Each party hereby irrevocably agrees that all claims, proceedings, and disputes arising in connection with this Agreement shall be brought in a federal or state court located in California.
- b) Force Majeure. If an act of God, war, riot, civil commotion, explosion, fire, government action, court order, pandemic, epidemic or other disease outbreak, any labor shortage related to any of the foregoing, or other similar circumstance beyond a party’s reasonable control (a “Force Majeure Event”) prevents, hinders, or delays performance of either party’s obligations under this Agreement (except for the obligation to pay Fees) for more than thirty (30) days at any time during the Term, either party will have the right to terminate the affected portion of this Agreement as of the date specified by such party in a written notice of termination to the other party; provided the party claiming a Force Majeure Event will take all commercially reasonable actions that may be necessary to mitigate the impact of its non-performance.
- c) Notice. Any notice required or permitted to be given under this Agreement will be in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Commercial Terms and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
- d) Assignment. This Agreement is not assignable or transferable, in whole or in part, by Customer, whether involuntarily, by merger, operation of law, or otherwise, without Vivalink’s prior written consent, which may be withheld by Vivalink for any reason whatsoever or for no reason at all. Any amalgamation or merger of a party with any third party, or the purchase or all or substantially all of the assets of a party, will be deemed an assignment of this Agreement requiring Vivalink’s consent. Any attempted transfer in violation of this section shall be null and void and of no force or effect whatsoever.
- e) Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement.
- f) Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- g) Entire Agreement; Modification. This Agreement contains the entire, final, integrated, and exclusive agreement between the parties as to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties. No amendments, or modifications to the Agreement will be valid and binding except if in writing and signed by authorized representatives of the parties.
- h) Interpretation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Each party acknowledges that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.
- i) Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to act as an agent or have control over the day-to-day activities of the other party.
- j) Counterparts. The Agreement may be executed in counterparts, each of which shall constitute an original and both of which together shall constitute one and the same instrument. For purposes of the Agreement, a facsimile or electronic copy or PDF of a party’s signature printed by a receiving facsimile machine or printer shall be deemed an original signature.