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Agreement No. 351-2203909
<br />Managed Services Subscription Agreement (03.26.20) Page 4 of 12
<br />This document and any attachments are for the sole use of the intended recipients and contain confidential and proprietary information.
<br />Any unauthorized use, disclosure or distribution of this document or its attachments is prohibited.
<br />express, implied (including by statute, custom or usage, a
<br />course of dealing, or common law) including, without
<br />limitation, any implied warranty that the Managed Services
<br />will meet Subscriber's requirements or be fit for the intended
<br />purpose or be of satisfactory quality.
<br />e. RFI's total aggregate liability to Subscriber arising out
<br />of or in connection with this Agreement and any breach or
<br />non-performance of it, no matter how fundamental, and
<br />whether any claim for recovery is based in contract, tort
<br />(including gross negligence), breach of statutory duty or
<br />otherwise, shall not exceed the Subscription Fees paid to
<br />RFI for the Managed Services under this Agreement for the
<br />applicable Subscription Period.
<br />8. Subscriber Indemnity. Subscriber shall indemnify,
<br />defend, and hold harmless RFI and its officers, directors,
<br />employees and agents, from and against judgments,
<br />losses, fines, court costs, and reasonable legal fees
<br />resulting from Subscriber’s negligence, willful misconduct,
<br />or breach of any provision of Sections 4 or 5, or a claim
<br />brought or threatened by a third-party which is premised on
<br />or asserts such a breach by Subscriber.
<br />9. Consequential Damages. Neither Subscriber nor RFI
<br />shall be liable to the other for any indirect, special or
<br />consequential loss, including without limitation any loss of
<br />profit or revenue, anticipated savings, loss of or damage to
<br />goodwill, reputation or business, loss or corruption of
<br />software, information or data or cost of substitute software
<br />or services, arising out of or in connection with this
<br />Agreement or any breach or non-performance of it no matter
<br />how fundamental and whether any claim for recovery is
<br />based in contract, tort (including by any reason of
<br />negligence), for breach of statutory duty or otherwise,
<br />provided, that neither party excludes or limits its liability
<br />under any provision of this Agreement in respect of any
<br />death or personal injury caused by its own gross
<br />negligence; fraudulent misrepresentation; or statutory or
<br />other liability which cannot be excluded or limited by
<br />applicable law.
<br />10. Force Majeure. RFI shall not be deemed to be in
<br />breach of the Agreement by reason of delay in performance
<br />of any of its obligations hereunder due to circumstances
<br />beyond its reasonable control such as any “acts of God,”
<br />regulations or omissions of governments or their agents and
<br />officers, natural disasters, acts of war, insurrection or
<br />terrorism, unauthorized network or computer intrusion, or
<br />Internet or computer-related viruses or other agents
<br />introduced by a third party (“Force Majeure”). If a Force
<br />Majeure which materially interferes with the Subscriber’s
<br />use of the Service prevails for longer than sixty (60) days,
<br />Subscriber shall be entitled to give RFI notice of termination
<br />under Section 6(a) and if RFI is unable to restore normal
<br />provision of the Service during the notice period, upon
<br />termination RFI will refund to Subscriber the pro rata portion
<br />of prepaid Subscription Fees for the unused portion of the
<br />Subscription Period.
<br />11. Notice. The parties may give written notice required or
<br />permitted hereunder via electronic mail (deemed effective
<br />upon email response or confirmation by the recipient), by
<br />nationally recognized overnight or personal delivery service
<br />(deemed effective upon delivery in the records of the
<br />service), or by first class mail, postage prepaid (deemed
<br />effective four (4) days after the postmark date), in each case
<br />to the address indicated in the Subscription Order or
<br />subsequent address provided by the recipient party by
<br />notice hereunder. RFI may give service notices by means
<br />of postings on the Subscriber portal.
<br />12. Interpretation and Enforcement. This Agreement
<br />constitutes the entire agreement of the parties with respect
<br />to the subject matter hereof and supersedes any and all
<br />existing or prior agreements and communications, whether
<br />written or oral, relating to the subject matter hereof. No
<br />person who is not a party to this Agreement has any right to
<br />enforce any rights or remedies hereunder, provided, that
<br />this Agreement shall be binding upon and inure to the
<br />benefit of the parties, and their respective successors and
<br />permitted assigns. No portion of this Agreement may be
<br />assigned or transferred (directly, by operation of law or
<br />otherwise) by a party without the other’s prior written
<br />consent, provided that no prior written consent shall be
<br />required in the case of assignment in connection with
<br />acquisition of substantially all of the assets and business of
<br />a party and assumption of its obligations hereunder. Any
<br />deviation from or modification, supplement or amendment
<br />of these Subscription Terms must be set forth in a separate
<br />written addendum duly accepted by Subscriber and RFI. A
<br />party’s failure to enforce any provision of this Agreement
<br />shall not constitute its waiver or impairment thereof or of its
<br />right to avail itself of remedies for breach thereof. A waiver
<br />may only occur by express written permission of an
<br />authorized officer of the party to whom the duty is owed. Any
<br />provision of this Agreement held or determined by a court of
<br />competent jurisdiction to be illegal, invalid, or unenforceable
<br />in any jurisdiction shall be deemed separate, distinct and
<br />independent, and shall be ineffective to the extent of the
<br />court’s holding or determination, without invalidating the
<br />remaining provisions of this Agreement in that jurisdiction.
<br />This Agreement shall be governed by and interpreted under
<br />the laws of the State of California, and the parties agree to
<br />jurisdiction and venue in the state or federal courts, as
<br />applicable, in San Jose, California. ******
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