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| Disclaimer of Warranty |
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You as a customer agree to use all Services and any information obtained through or from NetPivotal,
at Customer's own risk. Customer acknowledges and agrees that NetPivotal exercises no control over,
and accepts no responsibility for, the content of the information passing through NetPivotal's host
computers, network hubs and points of presence or the Internet. The service provided under this agreement
is provided as is, as available basis. None of NetPivotal, it's parent, subsidiary or affiliated
corporations, or any of their respective employees, officers, directors, shareholders, affiliates,
agents, suppliers, third party information providers, merchants, licensors or the like
(each an "NetPivotal 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 NetPivotal provides. No NetPivotal person
makes any warranties that these 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. NetPivotal is not liable, and expressly disclaims any liability, for the content
of any data transferred either to or from the customer or stored by customer or any of customer's
customers via the services provided by NetPivotal. No oral or written information given by any
NetPivotal person, will create a warranty; nor may you rely on such information or advice. The terms
of this section shall survive any termination of this agreement.
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| Indemnification |
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Customer agrees to indemnify, defend and hold harmless NetPivotal and its parent, subsidiary and
affiliated companies, and each of their respective officers, directors, employees, shareholders
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, reasonable legal fees)
threatened, asserted, or filed by a third party against any of the indemnified parties arising out
of or relating to (i) Customer's use of the Services, (ii) any violation by Customer of the Usage
Policy, (iii) any breach of any representation, warranty or covenant of Customer contained in this
Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any
termination of this Agreement.
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| Limitation of Liability |
Customer agrees that no NetPivotal Person, under any circumstances, shall be held responsible or
liable for situations where the Services are accessed by third parties through illegal or illicit
means, including situations where such data is accessed through the exploitation of security gaps,
weaknesses or flaws (whether known or unknown to NetPivotal at the time) which may exist in the
Services or NetPivotal's equipment used to provide the Services.
Under no circumstances, including negligence, shall any NetPivotal Person be liable for any
indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue,
data or use by Customer, any of its customers, any Reseller Customer or any other third party,
whether in an action in contract or tort or strict liability or other legal theory, even if
NetPivotal has been advised of the possibility of such damages. No NetPivotal Person shall be
liable to Customer, any of its customers, any Reseller Customer or any other third party, for
any loss or damages that result or are alleged to have resulted from the use of or inability
to use the Services, or that results from mistakes, omissions, interruptions, deletion of files,
loss of data, errors, viruses, defects, delays in operations, or transmission or any failure
of performance, whether or not limited to acts of God, communications failure, theft,
destruction or unauthorized access to NetPivotal's records, programs, equipment or services.
Not withstanding anything to the contrary in this Agreement, NetPivotal'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 amount paid by Customer for the Services which gave rise to such
damages, losses and causes of actions during the 12-month period prior to the date the damage
or loss occurred or the cause of action arose.
Customer understands, acknowledges and agrees that if NetPivotal takes any corrective action
under this Agreement because of an action of Customer or one if its customer or a Reseller
Customer, that corrective action may adversely affect other customers of Customer or other
Reseller Customers, and Customer agrees that NetPivotal shall have no liability to Customer,
any of its customers or any Reseller Customer due to such corrective action by NetPivotal.
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.
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| Force Majeure |
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NetPivotal shall not be liable for failure or delay in performing it obligations hereunder if
such failure or delay is due to circumstances beyond its reasonable control, including,
without limitation, acts of any governmental body, war, insurrection, sabotage, embargo,
fire, flood, strike or other labour disturbance, interruption of or delay in transportation,
unavailability of, interruption or delay in telecommunications or third party services
(including DNS propagation), failure of third party software or hardware or inability to
obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
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| Governing Law and Jurisdiction |
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This Agreement shall be governed in all respects by the Law of England and Wales without regard to
the conflict of law provisions thereof. Both parties submit to personal jurisdiction in England
and Wales. In any legal action, the prevailing party will be entitled to recover all legal expenses
incurred in connection with the action, including but not limited to its costs, both taxable and
non-taxable, and reasonable legal fees. The terms of this section shall survive any termination of
this Agreement.
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| Assignment |
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Customer shall not have the right to assign this Agreement without the prior written consent of
NetPivotal. This Agreement shall be binding upon and inure to the benefit of Customer and NetPivotal
and their successors and permitted assigns.
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| Entire Agreement; Severability |
This Agreement, together with the Order Form and any other documents or agreements specifically
identified in this Agreement, represents the entire agreement between the parties, and supersedes
all previous representations, understandings or agreements. If any provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement
for his or her personal use and is over 18 years of age, or a corporation, limited partnership
or other legal entity, duly organized, validly existing and in good standing under the laws of
the state of its organization and the person acting on behalf of Customer is duly authorized to
accept, execute and deliver this Agreement on behalf of Customer.
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