PLEASE READ THE FOLLOWING TERMS CAREFULLY AND RETAIN A COPY OF THEM FOR YOUR RECORDS.
IOBRIDGE PRODUCTS AND SERVICES MAY BE PURCHASED FOR EITHER (i) PERSONAL OR EVALUATION USE; OR (ii) PROFESSIONAL OR COMMERCIAL USE. YOUR PURCHASE IS DEEMED TO BE FOR PROFESSIONAL OR COMMERCIAL USE IF YOU PURCHASE ANY OF THE DEVICES LISTED IN SECTION C OF THESE TERMS AND CONDITIONS (THE “TERMS”), OR IF YOUR PURCHASE INCLUDES YOUR USE OF THE iobridgepro.com DOMAIN. IF YOU PURCHASE OUR DEVICES OR SERVICES FOR PERSONAL OR EVALUATION PURPOSES, YOUR PURCHASE WILL BE GOVERNED BY SECTION A OF THESE TERMS ONLY. IF YOU PURCHASE OUR DEVICES OR SERVICES FOR PROFESSIONAL OR COMMERCIAL PURPOSES, THEN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES SHALL BE GOVERNED BY SECTIONS A AND B OF THESE TERMS.
IF YOU ARE ENTERING INTO THIS PURCHASE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES. AS USED HEREIN, THE TERMS “IOBRIDGE,” “WE,” “US” AND “OUR” REFER TO IOBRIDGE, INC., A DELAWARE CORPORATION.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OR BY PURCHASING IOBRIDGE PRODUCTS OR SERVICES THROUGH AN AUTHORIZED RESELLER, YOU AGREE TO BE BOUND BY THESE TERMS, SUCH ORDER AND ANY OTHER EXHIBIT, SCHEDULE OR ASSOCIATED DOCUMENT, ALL OF WHICH SHALL CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND US WITH RESPECT TO THE APPLICABLE PURCHASE.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
A. TERMS APPLICABLE TO ALL PURCHASERS
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us or an ioBridge reseller from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services for Your use that You or Your Affiliates purchase under an Order Form.
"Services" means the online, Web-based applications and platform provided by Us via http://ioBridge.com, http://ioBridge.net, or http://ioBridgePro.com and/or other designated websites as described in the User Guide, that are ordered by You through Our online ioBridge store, through an ioBridge reseller, or under an Order Form, including associated offline components but excluding Third Party Applications.
“Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
"User Guide" means the online user guide and Wiki for the Services, accessible via http://iobridge.com or ioBridgePro.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide.
“Devices” means hardware modules sold by Us that may be used to access Our Services.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. MODIFICATIONS TO THIS AGREEMENT: We reserve the right to change or modify these terms at any time. We may provide notice of any changes to any of these terms by regular mail, email, or by posting such changes on the Our website.
3. LEGAL USE: You agree to use Purchased Services only for purposes that abide by the laws of the United States and with the terms of this agreement. You also agree not to interfere with or disrupt Our services or servers.
4. USERS OUTSIDE THE UNITED STATES: You agree to use Purchased Services only for purposes that comply with all local laws and guidelines.
5. LIMITATIONS ON LIABILITY: In no event shall We be responsible or liable under this Agreement for (1) failure to record or store data or communications, (2) the loss or corruption of said data, (3) the recording or storage of incorrect data, (4) loss of revenue or anticipated profits, loss of business, loss of opportunity, loss of goodwill or injury to reputation resulting from the use of Our website, services, or products, (5) any losses suffered by third parties, (6) any indirect or direct damages resulting from the use of Our website or services, (7) any damages resulting from unavailability of its products, (8) damages resulting from improper or incorrect use of Our products, either alone or in conjunction with other third-party software or products, (9) damages resulting from any use not in accordance with all applicable laws, regulations, and guidelines, or (10) damages caused by defects or failures of third-party products or services
6. LIMITS: You acknowledge and agree that We reserve the right to set limits on the number of transactions You may send or receive using Our Services at any time, with or without notice.
7. NETWORKS: You agree that Our Services may involve the transmission of Your Data over various networks and may require changes to conform to the technical requirements of connecting networks.
8. SERVICE MODIFICATION/DISCONTINUATION: We reserve the right to modify or discontinue service at any time, either temporarily or permanently, without notice. We are are not liable for any damages that result from the modification or discontinuation, temporary or permanent, of Our Services.
9. YOUR RESPONSIBILITY: You are responsible for any and all activity that occurs on your account. You agree not to hold Us responsible for any damages that result from failure to keep your account password secure.
10. ACCOUNT INFORMATION: By the use of Our Services, you agree that We may access and preserve your account information and any data associated with your account if required to so by law, if required to enforce any part of these terms, or to detect or prevent any fraud, security, or technical issues. User account names must not contain trademarks that are not under license by the registering party.
11. SHIPPING: Loss or damage that occurs during shipping is Our responsibility. However, you must notify Us by email (to support@iobridge.com) within ten (10) days of receipt of your shipment if you believe that any part of your order is missing, damaged, or incorrect. You agree to pay any value-added or import taxes associated with your shipment.
12. RETURNS OR EXCHANGES: You may return your purchase for any reason within 30 days of purchase. You may return your purchase for reason of defect or malfunction within 60 days of purchase. You are responsible for any costs associated with shipping your items back to Us. You are also responsible for ensuring the product is packaged correctly to protect against loss or damage; you are responsible for any damage or loss that occurs as a result of returning your items to Us. We will process all refunds within three (3) business days of receipt of returns, provided that all items have been returned and are in a condition equivalent to that in which they were shipped to you.
13. INTELLECTUAL PROPERTY: All rights and interest in Our intellectual property, including technology, shall remain solely and exclusively Our property. You agree that you have no rights to or ownership of any or Our intellectual property, in whole or in part.
14. HOLD HARMLESS: You agree that you will defend and hold Us harmless; including all employees, to the fullest extent permitted by law, from any claim, cause of action, or liability that relates to any of the following: (1) your modification of Our products or services, (2) any breach of this agreement, (3) any omission, misrepresentation, or negligence by you, (4) any damages to third parties caused by Our products or services that are sold or resold by you in breach of this agreement, or (5) your failure to abide by all applicable laws, regulations, or guidelines.
15. UNAVAILABILITY OF ITEMS: If for some reason an item you have ordered is unavailable, we agree to notify you, by email, of the unavailability. At that time you may select a different item and pay the price of that selected item, or you may request a refund.
16. ORDER CANCELLATION: You may cancel your order at any time prior to notification of shipment of your order.
17. GENERAL PROVISIONS.
17.1 Notices to Us should be addressed to:
ioBridge, Inc.
225 Cedar Hill Street, Suite 200
Marlborough, MA 01752.
Attn: Chief Executive Officer
Fax: 508-453-0294
Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
17.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable Claim).
17.3. Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement shall be governed by the laws of the Commonwealth of Massachusetts and the United States, as applicable, without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
17.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
17.5. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
17.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
17.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
17.8. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
17.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
17.10. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of any payment obligation of Yours hereunder.
17.11. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17.12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by both parties. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
17.13 Surviving Provisions. All Provisions of these Terms which by their nature or meaning have applicability following the conclusion or termination of an Order shall survive in accordance with their respective terms.
B. TERMS APPLICABLE TO PROFESSIONAL AND COMMERCIAL USERS ONLY
1. PURCHASED SERVICES
1.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. User or Device Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as User or Device subscriptions and may be accessed by no more than the specified number of Users or Devices.
2.3 . Unless otherwise specified in the applicable Order Form, User or Device subscriptions are required to be purchased and maintained for a Device to operate. We have no obligation to provide Services for Devices without a current User or Device subscription associated with such Services or Devices, or to refund any payments made to Us if You chose to discontinue a subscription outside the applicable Return or Exchange period.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, with a service availability of 99.9% measured over a period of one calendar year, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User or Device Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.
3.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User or Device Guide.
4. TERM AND TERMINATION
4.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
4.2. Term of Purchased User Subscriptions. User and Device subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User and Device subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
4.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
5. THIRD-PARTY PROVIDERS
5.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
5.3. Google Services. Service features that interoperate with Google services depend on the continuing availability of the Google API and program for use with the Services. If Google Inc. ceases to make the Google API or program available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User or Device Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User or Device subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User or Device subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section B.4.2 (Term of Purchased User or Device Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section B.6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
6.5. Payment Disputes. We shall not exercise Our rights under Section B.6.3 (Overdue Charges) or B.6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) reverse engineer the Services, or (iii) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.2. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.3. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
7.4. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Guide, and (ii) subject to Section B.5.3 (Google Services), the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section B.4.3 (Termination for Cause) and Section B.4.4 (Refund or Payment upon Termination) below.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We shall defend and hold You harmless from and against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim without your consent unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
9.2. Indemnification by You. You shall defend and hold Us harmless from and against any Claim made or brought against Us relating to any of the following: (i) a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, (ii) your modification of Our products or services, (iii) any breach by You of this agreement, (iv) any omission, misrepresentation, or negligence by You, (v) any damages to third parties caused by Our products or services that are sold or resold by you in breach of this agreement, or (vi) your failure to abide by all applicable laws or regulations, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9.3. Exclusive Remedy. This Section B.9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION B.5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS, LOSS OF BUSINES, LOSS OF OPPORTUNITY, LOSS OF GOODWILL OR INJURY TO REPUTATION, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
C. DEVICES DESIGNATED AS PROFESSIONAL OR COMMERCIAL PRODUCTS
IO-204-PRO modules
