Confidentiality, Warranties & Limitation of Liability
The terms below are incorporated into, and form an integral part of, the Ability Commerce Terms of Service. Unless otherwise defined herein, capitalized terms shall have the meaning as described in the Terms of Service. Any breach of the terms below will be deemed a material breach of the Terms of Service.
1. CONFIDENTIAL INFORMATION.
1.1 COMPANY agrees to observe complete confidentiality with respect to the SERVICE and to this AGREEMENT and its exhibits, and will not copy, reproduce, publicize, or otherwise disseminate it to third parties.
1.2 Ability Commerce agrees to observe complete confidentiality with respect to vendor information, customer information, product information, illustrations and business methods used by the COMPANY, and will not copy, reproduce, publicize, or otherwise disseminate it to third parties.
1.3 All information relating to COMPANY that is known to be confidential or proprietary, is of a nature that is generally regarded as confidential or proprietary in the industry, or which is clearly marked as confidential or proprietary, will be held in confidence by Ability Commerce and will not be disclosed or used by Ability Commerce except to the extent that such disclosure or use is reasonably necessary to the performance of Ability Commerce's Work.
1.4 All information relating to Ability Commerce that is known to be confidential or proprietary, is of a nature that is generally regarded as confidential or proprietary in the industry, or which is clearly marked as confidential or proprietary, will be held in confidence by COMPANY and will not be disclosed or used by COMPANY except to the extent that such disclosure or use is reasonably necessary to the performance of COMPANY's duties and obligations under this AGREEMENT.
1.5 These obligations of confidentiality will extend for a period of two (2) years after the termination of this AGREEMENT but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
1.6 Any material breach of confidentiality shall give the non-breaching party the right to notify the other party of an intent to terminate the agreement immediately upon notice. Notwithstanding such termination, Ability Commerce shall continue to provide services up to one hundred eighty (180) days after termination while COMPANY transitions to another service provider, unless the parties agree to cease provision of the services on an earlier date. Both Ability Commerce and COMPANY agree that the remedies at law for breach of confidentiality are inadequate and that the harmed party will be entitled to equitable relief, including without limitation, injunctive relief, specific performance and/or other remedies in addition to remedies provided at law.
1.7 Survival. The terms of this Section will survive for as long as the Confidential Information remains confidential.
1.2 Ability Commerce agrees to observe complete confidentiality with respect to vendor information, customer information, product information, illustrations and business methods used by the COMPANY, and will not copy, reproduce, publicize, or otherwise disseminate it to third parties.
1.3 All information relating to COMPANY that is known to be confidential or proprietary, is of a nature that is generally regarded as confidential or proprietary in the industry, or which is clearly marked as confidential or proprietary, will be held in confidence by Ability Commerce and will not be disclosed or used by Ability Commerce except to the extent that such disclosure or use is reasonably necessary to the performance of Ability Commerce's Work.
1.4 All information relating to Ability Commerce that is known to be confidential or proprietary, is of a nature that is generally regarded as confidential or proprietary in the industry, or which is clearly marked as confidential or proprietary, will be held in confidence by COMPANY and will not be disclosed or used by COMPANY except to the extent that such disclosure or use is reasonably necessary to the performance of COMPANY's duties and obligations under this AGREEMENT.
1.5 These obligations of confidentiality will extend for a period of two (2) years after the termination of this AGREEMENT but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
1.6 Any material breach of confidentiality shall give the non-breaching party the right to notify the other party of an intent to terminate the agreement immediately upon notice. Notwithstanding such termination, Ability Commerce shall continue to provide services up to one hundred eighty (180) days after termination while COMPANY transitions to another service provider, unless the parties agree to cease provision of the services on an earlier date. Both Ability Commerce and COMPANY agree that the remedies at law for breach of confidentiality are inadequate and that the harmed party will be entitled to equitable relief, including without limitation, injunctive relief, specific performance and/or other remedies in addition to remedies provided at law.
1.7 Survival. The terms of this Section will survive for as long as the Confidential Information remains confidential.
2. WARRANTIES.
2.1 Owner. Ability Commerce warrants that it is the lawful owner of the Ability SOFTWARE and it has the authority to grant the License, sold as a monthly subscription Plan specified herein.
2.2 Compliance with Laws. Each Party represents and warrants that it is and shall remain in compliance with all applicable federal, state, and local laws, rules, and regulations applicable to such Party. That Ability Commerce has the authority to enter into the AGREEMENT and that it is the valid and binding obligation of Ability Commerce to provide the SERVICE in compliance with all applicable laws, rules, and regulations that Ability Commerce will perform the SERVICE in a skillful manner and in accordance with all applicable industry standards.
2.3 Compliance with Documentation. Ability Commerce represents and warrants that the SERVICES do and shall operate in compliance with all applicable Documentation when used by COMPANY in an authorized manner.
2.4 No Intellectual Property Infringement. Ability Commerce represents and warrants that the Services do not infringe any third party’s patent, copyright, trademark, trade secret, or other intellectual property rights.
2.5 No Malware; No Unauthorized Data Transmission. Ability Commerce represents and warrants that the Services, when used by COMPANY in an Authorized Manner, shall not transmit to COMPANY any malicious software or any data not authorized under the Privacy Policy or this AGREEMENT for COMPANY to receive.
2.6 This WARRANTIES Section will survive any termination or expiration or these Terms.
2.2 Compliance with Laws. Each Party represents and warrants that it is and shall remain in compliance with all applicable federal, state, and local laws, rules, and regulations applicable to such Party. That Ability Commerce has the authority to enter into the AGREEMENT and that it is the valid and binding obligation of Ability Commerce to provide the SERVICE in compliance with all applicable laws, rules, and regulations that Ability Commerce will perform the SERVICE in a skillful manner and in accordance with all applicable industry standards.
2.3 Compliance with Documentation. Ability Commerce represents and warrants that the SERVICES do and shall operate in compliance with all applicable Documentation when used by COMPANY in an authorized manner.
2.4 No Intellectual Property Infringement. Ability Commerce represents and warrants that the Services do not infringe any third party’s patent, copyright, trademark, trade secret, or other intellectual property rights.
2.5 No Malware; No Unauthorized Data Transmission. Ability Commerce represents and warrants that the Services, when used by COMPANY in an Authorized Manner, shall not transmit to COMPANY any malicious software or any data not authorized under the Privacy Policy or this AGREEMENT for COMPANY to receive.
2.6 This WARRANTIES Section will survive any termination or expiration or these Terms.
3. LIMITATION OF LIABILITY AND INDEMNIFICATION.
3.1 Neither party will be liable to the other for special, indirect, or consequential damages incurred or suffered by the other arising because of or related to the use of the Software, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Each party’s total liability under this AGREEMENT with respect to the Software, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by COMPANY under this agreement.
3.2 Each party agrees to indemnify the other party, its Affiliates, and their respective officers, directors, members, shareholders, employees, agents, assigns and successors, and shall hold them harmless against any losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees) resulting from a third-party claim, arising out of or alleged to have arisen out of, (a) such party's breach of its obligations, representations or warranties under this AGREEMENT or (b) bodily injury, death or property damage caused by such party. The indemnified party (whether pursuant to indemnification obligations set forth in this Section 3.2, Section 3.3, or any other section in this Agreement) agrees to give prompt written notice to the indemnifying party of any such claim; provided, that any delay in furnishing such notice shall not discharge the indemnifying party from its indemnification obligation hereunder, except to the extent such delay results in actual prejudice to the indemnifying party. The indemnifying party shall undertake and conduct the defense of any claim so brought. The indemnifying party shall keep the indemnified party advised of the progress of any such claim and the indemnified party shall have the right to participate in such claim at its own expense. If the indemnifying party shall fail to take timely action to defend any such claim, then the indemnified party may defend such claim at the indemnifying party's expense. The indemnifying party shall not have the right to settle, compromise or otherwise enter into any agreement regarding the disposition of any claim without the indemnified party's prior written consent, which may not be unreasonably withheld, except for a claim solely for monetary damages.
3.3 Ability Commerce indemnifies COMPANY for any claim suffered by COMPANY in the event the SERVICE infringes the IP rights of any third-party.
3.4 The Limitations of Liability set forth in this section shall not apply to a party’s damages arising from the other party’s gross negligence or willful misconduct.
3.5 This LIMITATION OF LIABILITY AND INDEMNIFICATION Section will survive any termination or expiration or these Terms.
3.2 Each party agrees to indemnify the other party, its Affiliates, and their respective officers, directors, members, shareholders, employees, agents, assigns and successors, and shall hold them harmless against any losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees) resulting from a third-party claim, arising out of or alleged to have arisen out of, (a) such party's breach of its obligations, representations or warranties under this AGREEMENT or (b) bodily injury, death or property damage caused by such party. The indemnified party (whether pursuant to indemnification obligations set forth in this Section 3.2, Section 3.3, or any other section in this Agreement) agrees to give prompt written notice to the indemnifying party of any such claim; provided, that any delay in furnishing such notice shall not discharge the indemnifying party from its indemnification obligation hereunder, except to the extent such delay results in actual prejudice to the indemnifying party. The indemnifying party shall undertake and conduct the defense of any claim so brought. The indemnifying party shall keep the indemnified party advised of the progress of any such claim and the indemnified party shall have the right to participate in such claim at its own expense. If the indemnifying party shall fail to take timely action to defend any such claim, then the indemnified party may defend such claim at the indemnifying party's expense. The indemnifying party shall not have the right to settle, compromise or otherwise enter into any agreement regarding the disposition of any claim without the indemnified party's prior written consent, which may not be unreasonably withheld, except for a claim solely for monetary damages.
3.3 Ability Commerce indemnifies COMPANY for any claim suffered by COMPANY in the event the SERVICE infringes the IP rights of any third-party.
3.4 The Limitations of Liability set forth in this section shall not apply to a party’s damages arising from the other party’s gross negligence or willful misconduct.
3.5 This LIMITATION OF LIABILITY AND INDEMNIFICATION Section will survive any termination or expiration or these Terms.
