Bundled Services Agreement Part 3
19. Independent Contractor:
CNP and User are independent contractors and nothing contained in this Agreement places CNP and User in the relationship of principal and agent, master and servant, partners or parties to a joint venture. Neither party, expressly or by implication, may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
20. Personal Information:
21. Exclusion of Warranties:
BECAUSE THE SOFTWARE IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE SOFTWARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH CUSTOMER. SHOULD THE SOFTWARE PROVE DEFECTIVE, CUSTOMER ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. CNP DOES NOT WARRANT THAT USER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, WHEN TIMELY, SECURE, OR ERROR FREE. FURTHER, CNP DOES NOT WARRANT THAT ANY DEFECTS IN THE OPERATION OR FUNCTIONING OF ANY SOFTWARE PROVIDED TO USER AS PART OF THE SERVICES WILL BE CORRECTED.
USER UNDERSTANDS AND AGREES THAT THE CNP SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CNP MAKES NO WARRANTY THAT THE CNP SERVICE WILL MEET USER’S REQUIREMENTS, ALLOW USER TO RECORD, VIEW OR TRANSFER ANY PARTICULAR PROGRAMMING, OR THAT USE OF THE CNP SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES CNP MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE CNP SERVICE (INCLUDING THIRD PARTY CONTENT), THAT ANY DEFECTS IN THE CNP SERVICE WILL BE CORRECTED OR THAT THE CNP SERVICE WILL BE COMPATIBLE WITH ANY OTHER SPECIFIC HARDWARE OR SERVICE. FURTHER, CNP DOES NOT WARRANT THAT THE CNP SERVICE OR THE CNP SERVERS THAT PROVIDES USER WITH DATA AND CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USER (AND NOT CNP) ASSUMES THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR CORRECTION. CNP AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE CNP SERVICE OR CNP SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS.
22. Limitations of Liability:
- a.IN NO EVENT WILL CNP's LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO CNP BY THE CUSTOMER DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- b.CNP CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. CNP WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM. CNP SHALL NOT BE LIABLE IN SITUATIONS WHERE THE SERVICES ARE ACCESSED BY THIRD PARTIES THROUGH ILLEGAL OR OTHERWISE UNAUTHORIZED MEANS, INCLUDING SITUATIONS WHERE SUCH DATA IS ACCESSED THROUGH THE EXPLOITATION OF SECURITY GAPS, WEAKNESSES OR FLAWS (WHETHER KNOWN OR UNKNOWN TO CNP AT THE TIME) WHICH MAY EXIST IN THE SERVICES OR CNP'S EQUIPMENT USED TO PROVIDE THE SERVICES.
- c.EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- d.The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other Terms of Service theory (including strict liability), other than claims based on fraud or wilful misconduct.
- e.Notwithstanding anything to the contrary in this Agreement, CNP's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by User for the Services which gave rise to such damages, losses and causes of actions during the 3-month period prior to the date the damage or loss occurred or the cause of action arose.
- f.User understands, acknowledges and agrees that if CNP takes any corrective action under this Agreement because of an action of User or one if its Users or a reseller, that corrective action may adversely affect other Users of User or other reseller Users, and User agrees that CNP shall have no liability to User, any of its Users or any Reseller User due to such corrective action by CNP.
- g.This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement.The terms of this section shall survive any termination of this Agreement.
- a. User agrees to use all Services and any information obtained through or from CNP, at User's own risk.User acknowledges and agrees that CNP exercises no control over, and accepts no responsibility for, the content of the information passing through CNP's host computers, network hubs and points of presence or the Internet.CNP PROPERTIES, THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY CNP OR ITS LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”, ON AN AS AVAILABLE BASIS. NEITHER WE NOR ANY OF CNP's PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A "RELATED PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT WE PROVIDE. NO RELATED PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USER OR STORED BY USER OR ANY OF USER'S CUSTOMERS VIA THE SERVICES PROVIDED BY US.NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.FINALLY, CNP WISHES TO EMPHASIZE THAT IN ACCEPTING SERVICES, CUSTOMERS INDEMNIFY CNP FOR THE VIOLATION OF ANY LAW OR CNP POLICY THAT RESULTS IN LOSS TO CNP OR THE BRINGING OF ANY CLAIM AGAINST CNP.THIS MEANS THAT IF CNP IS SUED BECAUSE OF ACTIVITIES OF THE CUSTOMER THAT VIOLATE ANY LAW, OR THIS POLICY, THE CUSTOMER WILL PAY ANY DAMAGES AWARDED AGAINST CNP, PLUS COSTS AND ATTORNEYS' FEES.The terms of this section shall survive any termination of this Agreement.
- b.CNP warrants that: (i) it has the authority and the right to enter into this Agreement, to perform and provide SERVICE OFFERINGS to User, and that its obligations hereunder are not in conflict with any other CNP obligations; (ii) all SERVICE OFFERINGS will be performed in a competent and professional manner, and will substantially conform, in all material respects, to User's requirements expressly set forth in Statement of Work; (iii) to its knowledge, neither the User, nor the performance of any services by CNP infringe upon or violate the rights of any third party and to its knowledge, User shall receive free and clear title to all Deliverables assigned to it; and (iv) at the time of acceptance, the Deliverables will substantially conform to the specifications and as User's sole and exclusive remedy for a breach of the foregoing, CNP shall use all commercially reasonable efforts to correct and repair, at no cost to User, any defect, malfunction or non-conformity that prevents the Deliverables from conforming to the Specifications.
- c.Furthermore, CNP warrants and represents that it shall not use the User materials which it develops for User hereunder in the use and development of any software and software code for any other manufacturer or distributor of automobiles, motorcycles or recreational vehicles.
- d.Any warranty in this agreement shall not apply to: (i) altered or damaged or any portion of the Deliverables incorporated with or into other software; (ii) any part of the Deliverables if it was subjected to negligence, abuse or misapplication by User.
- e.Except as expressly provided herein, CNP makes no warranties to any person or entity with respect to the Deliverables, CNP materials or any services or licenses and disclaims all implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose and non-infringement.CNP PROPERTIES, THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY CNP OR ITS LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. CNP AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, CNP AND ITS LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CNP AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA USER STORES WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. CNP AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY USER FROM CNP OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
User agrees to indemnify, defend and hold harmless CNP and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to User's use of the Services, (ii) any violation by User of the AUP, (iii) any breach of any representation, warranty or covenant of User contained in this Agreement or (iv) any acts or omissions of User. The terms of this section shall survive any termination of this Agreement.
CNP agrees to promptly notify User of any claim subject to indemnification; provided that CNP’s failure to promptly notify User shall not affect User’s obligations hereunder except to the extent that CNP’s failure to promptly notify User delays or prejudices User’s ability to defend the claim. At CNP’s option, User will have the right to defend against any such claim with counsel of User’s own choosing (subject to CNP’s written consent) and to settle such claim as User deems appropriate, provided that User shall not enter into any settlement without CNP’s prior written consent and provided that CNP may, at any time, elect to take over control of the defense and settlement of the claim.
User may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of CNP. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. CNP may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of User. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
27. Governing Law:
This agreement shall be binding upon the heirs and assignees of the parties and shall be governed by and interpreted according to the laws of the State of Massachusetts.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST CNP, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, "CNP") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), CNP's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet at http://www.adrforum.com, or via telephone at 952-516-6400, or toll-free 800-474-2371). The arbitration will be limited solely to the dispute or controversy between User and CNP. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed with the NAF at National Arbitration Forum P.O. Box 50191 Minneapolis, MN 55405-0191 USA, or by online filing at http://www.adrforum.com.
29. Injunctive Relief and Provisional Relief in Aid of Arbitration:
Notwithstanding the above mentioned provisions or anywhere else in this Agreement, CNP shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark or property rights or to preserve the status quo pending good faith negotiation and/or arbitration.
All notices or other documents under this agreement shall be in writing and delivered personally, email or fax received, or mailed by mail, postage prepaid, addressed to CNP and the User at their last known addresses.
31. Entire Agreement:
This Agreement, including all Schedules incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. This Agreement may be modified from time to time by CNP in its sole discretion, which modifications will be effective upon posting to CNP's Web site.
No amendment or change to the Agreement or any waiver or discharge or any rights or obligations under the Agreement shall be valid unless in writing and signed by an authorized representative of the Party against which such amendment, change, waiver or discharge is sought to be enforced.
User agrees that CNP may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version of the Agreement on the CNP Website. The revised terms shall be effective as follows:
- If the revised terms are (a) for any Paid Services which CNP is adding at the time of the revision, (b) for the Privacy Notice, (c) for the Conditions of Use, (d) for any AUP, (f) for any other general terms and conditions applicable to CNP’s services, web sites or other properties, or (g) for any Free Service, then the revised terms shall be effective upon posting (unless CNP expressly states otherwise at the time of posting); and
- If the terms are revised otherwise for any then-existing Paid Services, then the revised terms shall be effective upon the earlier to occur. A notice may be posted with amendments at one of CNP’s public portals for user review and the duration of the notices availability and posting processes may be subject to change based upon publically posted policies and (b) if CNP provides a mechanism for User’s immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, User’s acceptance.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement, User agrees to be bound by the revised Agreement. It is User’s responsibility to check the CNP Website regularly for changes to the Agreement, as applicable.
33. Force Majeure:
Neither party hereto shall be deemed in default of any Service Agreement or the Terms and Conditions to the extent that performance of its obligations (other than an obligation of payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, civil disturbance, terrorism, acts or omissions of suppliers and other third parties, act of government, strikes, unavailability of material, facilities, telecommunications services or supplies or any other cause beyond the reasonable control of such party (each, a “Force Majeure” Event).
In the event this Agreement is terminated for any reason, Sections 5, (with respect to payments that are accrued but unpaid at the time of termination), will survive any such termination.