(Web Services Development applies only when CNP is providing Web Development Services)
12. Retainer Program
a. CNP does not offer flat bid contracts. All services are delivered based on time and materials. Once CNP has reviewed the User's project plan and design requirements the User can engage in CNP's retainer program. This program mandates the User make a weekly electronic payment. Unless the User has an approved credit application, this weekly payment is due in advance. CNP will invoice the User with actual hours incurred and a detail of work performed with monthly statements. The User can also view their account any time by logging in to the User billing section of CNP’s Customer portal www.cnpintegrations.com.
b. Unless otherwise agreed the User is required to prepay for services through the CNP Retainer Program. The User must complete and return a clear Statement of Work agreement (SOW), and the Terms of Service agreement.
c. In the event additional project support is required to meet User expectations or deadlines, the retainer program authorizes CNP to bill up to twice the designated weekly contracted hours. CNP will not exceed this threshold more than two consecutive weeks without User's approval and will not extend credit beyond this time period. Anytime throughout the project cycle, if the User's retainer program is discontinued due to nonpayment, CNP reserves the right to cancel all discounts. CNP will immediately invoice the User for all back discounts granted and will withhold all source content and license agreements until any outstanding invoices are paid in full.
d. All unpaid balances incurred during period of service by CNP are subject to collection and/or legal action. If any invoice is not paid within sixty (60) days after the date of the invoice, CNP may retain a collection agency to recover the unpaid dues. If CNP collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if CNP prevails in any action to which the User and CNP are parties, User will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and CNP's attorneys' fees.
e. User authorizes CNP to use any method available to CNP to collect overdue balances. This includes charging a previously provided credit card or appointing a collection agency to recover the overdue balances.
f. For alternative payment options a credit application must be filled out. In these cases, the User will not be eligible for retainer program discounts.
13. Scope of services:
a. CNP will develop the web site in accordance with the site specification and the Statement of Work. User will provide CNP with design and navigation hierarchy, imagery and other User content as User deems appropriate for incorporation into the web site. All aspects of the web site developed by CNP are subject to approval by User prior to implementation. The web site shall include the User content, as well as original graphics and other material created by CNP exclusively for the web site. CNP shall provide or obtain, at its expense, all necessary programming and other production services and materials in order to implement the site specifications. CNP shall consult with User throughout the development of the web site. User shall have the right, at User's expense, to send User personnel to CNP's place of business upon reasonable notice during normal business hours for consultation with respect to the web site's development.
b. Web site Deliverables: Notwithstanding anything to the contrary contained herein, CNP shall deliver to User: (a) all HTML or other formatted text files, all related graphics files, data files, modules, routines, objects, computer software, all utilities developed by CNP and a list of utilities approved by User which are provided by third parties, and all other script or program files required to operate the web site, (b) the complete source code for the web site and all portions thereof, and (c) all related data or information required to enable User to support, maintain and modify the web site, including without limitation, utilities and other programs enabling User to generate detailed statistical reports on user access of the web site, self-authoring tools enabling User to easily update the web site without third party assistance, and all programs and information required for User to maintain and operate the web site to ensure access to the web site by all users at all times on a 24-hour per day, seven days per week basis. Deliverables will in all cases conform to the site specifications and/or any modifications thereto. CNP agrees to develop the documentation and to deliver the documentation to User for approval according to the Statement of Work and on the dates for delivery as agreed upon by the parties.
c. CNP shall use reasonable efforts to provide, under the provisions of this agreement, the services that are mutually agreed upon and described in Statement of Work. User understands that the application is intended to work with certain User materials and that CNP's performance is dependent on User's delivery of such User materials. Accordingly, User will provide CNP with such User materials and other requested assistance in accordance with the timetable agreed upon by the parties. Any dates or time periods relevant to performance by CNP hereunder shall be appropriately and equitably extended to account for any delays due to User. Subject to the above, CNP shall use commercially reasonable efforts to adhere to the deadlines, benchmarks and milestones mutually agreed upon by the parties.
14. Authorization:
The User is engaging CNP as a service contractor for a specific project of developing and/or improving the User’s website portal or CMS/CRM system to be installed on CNP affiliate server or the User’s web space on another Internet Service Provider’s (ISP’s) computer. The User hereby authorizes CNP to access this account, and authorizes the ISP to provide CNP with “write permission” to the User’s web page directory, CGI-Bin directory, and any other directories or programs which need to be accessed for the specific project. The User also authorizes to publicize their completed web site to web search engines, as well as other web directories and indexes.
15. Work policy/Personnel:
a. Each party will designate a Project Manager to serve as the main contact between them. CNP will use its reasonable efforts to ensure the continuity of CNP's employees assigned to perform services hereunder.
b. CNP reserves the right to assign subcontractors to this project to insure the right fit for the job as well as on-time completion. CNP warrants all work completed by subcontractors for this project the same as if CNP had completed the work.
c. On a periodic basis, CNP will submit written status reports describing its activities during the preceding period, including: the current status of activities (with an explanatory narrative when appropriate). The precise content and format of the status report shall be determined by the parties subsequent to the execution of this Terms of Use Agreement. Upon reasonable request and at User's expense, CNP will meet with User management to review the status of CNP's activities.
d. User will have ultimate responsibility to backup and secure their data. CNP will use its reasonable efforts to minimize any disruption to User's normal business operations at all times. If necessary, User will only provide working space, resources and materials to CNP.
e. Unless otherwise agreed to in writing, neither party will solicit the employment of the other party's personnel during the term of this Agreement and for a period 12 months thereafter.
f. The User agrees and acknowledges that he/she will thoroughly inspect and test the web site., web page, or code for all of User's purposes during 'pre-release' testing. CNP will put every reasonable effort to meet the User’s expectations during the pre-release and after the release of the web site.
16. Technical support:
a. If the User opts to maintain the site by himself after completion, CNP will provide e-mail and telephone assistance to the User's designated representative(s) regarding management of the User's web site for a period of as needed so long as a prepaid retainer is on file or subject to any terms of service agreement after the site is officially declared completed. If the User finds the need for assistance after this period has expired, the User will be offered such assistance under a separate Maintenance Agreement.
b. Site Maintenance is not included in the cost of site development. Users may choose to maintain a Maintenance Agreement after the completion of the site. Such services may be billed at a fixed monthly rate or an hourly rate and charges will vary depending upon the anticipated needs of the User. If the User chooses a Maintenance Agreement, the terms of such will be listed separately as required.
c. If the User or an agent of the User other than CNP attempts to update the web site after completion of the site and damages the design or impairs the ability for the web pages to display or function properly, time to repair the web pages will be assessed at an hourly rate. The estimate of the repair will be conveyed to the User for acceptance before repair work begins.
17. User Amendments:
a. CNP strives to provide excellent User service. CNP encourages input from the User during the design process. CNP understands, however, that Users may request significant design changes to pages that have already built to the User's specification. To that end, please note that this agreement does not include a provision for "significant page modification" or creation of additional pages in excess of the agreed maximum. If significant page modification is requested after a page has been built to the User's specification, it is considered as an additional page.
Some examples of significant page modification at the request of the User include, but are not limited to the following:
i. Developing a new table or layer structure to accommodate a substantial redesign at the User's request.
ii. Replacing more than 75% of the text to any given page at the User's request.
iii. Creating a new navigation structure at the User's request.
b. User should also be aware that significant modifications could delay the completion date, and requests for significant modifications before the completion date may incur additional charges, at the discretion of CNP. CNP, however, will notify the User via email, telephone, postal mail, or in person before this type of additional charges are incurred in order to gain the User's approval or rejection of these charges.
18. Content Format/Delivery:
a. All source content must be delivered to CNP in digital format. All content produced by the User to be placed on the User’s web pages for a specific CNP project must be submitted to CNP via 1) the User’s internal site, 2) a CNP file management tool, 3) a CD/DVD flash drive or, 4) emailed to CNP.
b. All images and/or graphics to be used on the User’s web pages must be submitted to CNP in either a *.jpg, png or *.gif format.
c. All sound, video, and music to be used on the User’s website must be submitted to CNP in the ap¬propriate format to be used on the User’s web pages. Any file reformatting or conversion changes of a sound or music file, by CNP will be billed at CNP’s published rate. For example, CNP will charge the User to convert a *.wav file and into a *.mpg file.
19. User Responsibilities:
a. The User understands that this contract does not provide ISP (Internet Service Provider) services or a Web Hosting server unless the User has contracted with CNP to provide web hosting on CNP servers; a separate subscription service.
b. The User is responsible for obtaining their own Internet connection and securing their web space on a Web Server; the charges for an ISP and Web Server are not included in the prices CNP lists for web development services and support.
c. The User will also provide CNP the location of the ISP or web Server that will be used for the maintenance of the User’s Website or web pages. It is the User’s responsibility to provide any passwords, codes, URLs, directories, FTP addresses, user names or any other information that is required in order for CNP to performing it’s User obligations.
d. The User is responsible for informing the User’s ISP or Web Host that CNP is maintaining the User’s Website or web pages, and the User should request that the ISP allow CNP to work on and make changes on the User’s servers or computers as needed.
20. Representations:
In the event that CNP creates and/or uses Content, Artwork, Clipart, Programming and Website pages, other than the User’s logo, except for artwork and coding supplied by the User, use of such artwork by CNP will not infringe upon any statutory copyright of the User. CNP has the right to use the likeness of all the persons depicted in the artwork where CNP has supplied the likeness.
The User asserts that all artwork, design, logos, likeness, or photos of persons as supplied by the User are with proper legal permission. That any artwork supplied by the User does not infringe on any copyright or registered trademark. The User agrees to abide by the appropriate use of web content. The User will indemnify and hold CNP harmless from any and all claims against either the User or CNP, including, but not limited to legal fees.
21. Copyrights and Ownership:
a. Any image, graphics, sound, music, custom code or scripts, text and any other material supplied by the User to CNP will remain the property of its owner, whether it be the User’s or a 3rd party. The User will be held responsible for any unlawfully obtained materials and related fees it supplies to CNP. This responsibility would include, but is not limited to; legal fees, court fees, attorney’s fees, copyright violation fees, and all fees that would apply from a copyright infringement lawsuit. CNP will not reuse or modify any custom image, graphics, sound, music, custom coding or scripts, text and any other material supplied by the User, for any other webpage or Website that CNP works on, without prior approval from the User.
b. Any image, graphics, sound, music, custom code or scripts, text and any other material created, developed, or supplied by CNP remains the property of CNP. CNP authorizes non-exclusive use to the User, to have any of its copyright material used for the User’s web pages or Website unless written permission is requested and granted. If CNP supplies any other image, graphics, sound, music, custom code or scripts, text and any other material from any other source the User is ultimately responsible for its use. The User will secure the necessary legal rights to use the above listed items and will indemnify CNP from any and all responsibility for their use.
c. Copyright to the finished assembled work of webpages produced by CNP is owned by CNP. Upon final payment of this contract, the User is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. CNP reserves the right to use the same images, likeness of, or modified versions of any image, graphics, sound, music, custom coding or scripts, text and any other material supplied by CNP for any other webpage or Website that CNP has produced or is producing. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the User, and remain the property of their respective owners. All CNP logos, designs, images, and trademarks are the exclusive property of CNP.
22. Design Credit: CNP retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
23. Additional Charges:
CNP reserves the right to charge the User for any approved additional fees or expenses which might arise from the creation, maintenance or development of the User’s Website or web pages in which CNP incurs a cost or bill from an outside agency, organization, User or any other entity. This would include, but is not limited to: travel expenses, long distance phone calls, obtaining specific programs or plug-ins, creating and producing printed materials including but not limited to brochures, manuals, posters, etc., hiring outside contractors, obtaining specific hardware, computer or other specific equipment, obtaining specific licenses or copyrights, reproduction cost of the User’s website or web pages (i.e. the reproducing on CD-ROMs, or any other portable computer medium), and obtaining an ISP’s or web space for the User. CNP shall inform the User and receive written approval from the User before beginning any development or obtaining any services, equipment or software that would be an added expense or fee to the User.
If necessary it the customer is required to affirm any contracts that CNP has entered into on the customer’s behalf and creating a novation of the new contract between the third party and the customer, thus absolving CNP of any liability regarding the contract.
24. Data Loss:
CNP is not responsible for any data loss associated with the User’s software or hardware failure. CNP’s practice is to backup the User’s data prior to engaging in a specific project. If restoration is required CNP is not liable for the User’s downtime or loss of business due to the time required to restore the system. CNP shall not be liable under any (foreseeable or unforseeable) circumstances for any loss of data resulting from delays, non-deliveries, mis-deliveries or service interruptions.
25. Third-Party Software:
In the event the User engages CNP to trouble shoot, test, or configure third party software and it is determined that the cause of the problem is related to deficiencies in the third party software, CNP will not be held responsible. The User will be subject to any service charges incurred by CNP for researching third party software issues that may or may not be related to resolve the issue.
(In cases of Bundled Services, provisions of both Web Hosting and Web Development Services will apply)
III. GENERAL CLAUSES
(These clauses apply to both Web Hosting and Web Development Services provided by CNP)
26. 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 joint venturers. 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.
27. Non-disclosure and Security:
CNP takes the privacy and security of the Customer and itself very seriously. All Customer information submitted to CNP will be held in the strictest confidence. CNP will not disclose or reveal any information obtained from the Customer to any individual, or any other entity, for the life of the contract or until it has been made public by the Customer. All CNP’s passwords, operational issues, business practices intellectual property, and any other “sensitive information” obtained by the Customer shall not be disclosed to any individual, or any other entity, for the life of the contract or until it has been made public by CNP, or required by proper authorities. Violation of this provision may be strictly enforced under penalty of law. If required by law, CNP will cooperate with authorites and disclose information.
28. Property Rights:
a. CNP hereby grants to User a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use CNP technology, products and services solely for the purpose of accessing and using the Services. User may not use CNP's technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from CNP to User any CNP technology, and all rights, titles and interests in and to any CNP technology shall remain solely with CNP. User shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the CNP.
b. CNP owns all right, title and interest in and to the Services and CNP's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Nothing in this Agreement constitutes a license to User to use or resell the Marks.
29. Limited Warranty:
a. CNP represents and warrants to User that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by CNP generally to its other Users for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. User will be deemed to have accepted such Services unless User notifies CNP, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. User's sole and exclusive remedy, and CNP's sole obligation, for breach of the foregoing warranties shall be for CNP, at its option, to re-perform the defective Services at no cost to User, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue User a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Services have been interrupted. CNP may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
b. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of CNP's reasonable control; (b) that resulted from any actions or inactions of User or any third parties; or (c) that resulted from User's equipment or any third-party equipment not within the sole control of CNP. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY PRODUCT OR SERVICE PROVIDED TO USER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
30. Limitation 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 willful 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.
31. Warranties/Disclaimer of Warranties:
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. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, 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 services to User, and that its obligations hereunder are not in conflict with any other CNP obligations; (ii) all Services 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.
32. Indemnification:
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.
33. Assignment:
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.
34. Governing Law:
This agreement shall be binding upon the heirs and assigees of the parties and shall be governed by and interpreted according to the laws of the State of Massachusetts.
35. Notices:
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 Customer at their last known addresses.
36. Entire Agreement:
This Agreement, including documents 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.
37. Severability:
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
38. Force Majeure:
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
BY CLICKING ON THE ‘I AGREE’ BUTTON OR PROCESSING YOUR ORDER, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, YOUR USE OF THE SERVICES ALSO CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS, YOU MUST DISCONTINUE THE REGISTRATION PROCESS, OR DISCONTINUE YOUR USE OF THE SERVICES.
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