End user agreement for Sales coApp
Master Service Agreement
These Master Terms and Conditions of Service (the “Terms of Service”) are between the Client identified in the Order Form (defined herein as the “Client”) and coAction.com, LLC, a New Jersey limited liability company whose principal office is located at 555 Route 1 South, Suite 410, Iselin, New Jersey 08830 (“coAction.com”). These Terms of Service are incorporated by reference into and made a part of each of the following, as applicable: (a) any Subscription Schedule Client may enter into with coAction.com (“Subscription Schedule”), (b) any Professional Services Schedule Client may enter into with coAction.com (“Professional Services Schedule”), (c) any Statement of Work entered into between Client and coAction.com (“Statement of Work”), or (d) any purchase order Client may have entered into with coAction.com, including by clicking “Create My Account” online in connection with the purchase of any products or services from coAction.com (each an “Order Form”). The Effective Date of Client’s Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form is the date such Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form is accepted by coAction.com.
1. Subscription Grant: coAction.com hereby grants Client a non-exclusive, non-transferable, worldwide right to use the Service, solely for Client’s own internal business purposes, subject to the terms and conditions of these Terms of Service and any Subscription Schedule(s) (as defined below). The “Service” will be identified in the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form that may be entered into from time to time by mutual agreement of the parties hereto (each a “Service Schedule” and collectively, the “Service Schedules”) and upon which agreement, shall become a part of and subject to these Terms of Service. Additional terms may be set forth in the Service Schedule(s). All rights not expressly granted to Client are reserved by coAction.com and its licensors.
Client may not access the Service if Client is a direct competitor of coAction.com, except with coAction.com's prior written consent. In addition, Client may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Client User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. "User(s)" means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by coAction.com at Client’s request).
Client may use the Service only for its internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
2. Term of Agreement: These Terms of Service shall remain in effect until terminated as provided herein.
3. Compensation: Client shall pay coAction.com the compensation as set forth in the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form.
4. Independent Contractor Status: Both Client and coAction.com agree that coAction.com will act at all times as an independent contractor in the performance of its duties under these Terms of Service, the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form.
5. Assignment: Neither party may assign these Terms of Service, the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form without the written consent of the other party, except that either party may assign these Terms of Service, the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form in conjunction with the sale of substantially all assets of the assigning party or a controlling ownership interest in the assigning party after 10 days advance written notice to the other party. This prohibition against assignment does not preclude the use of contractors by coAction.com to provide any Service.
a. “Confidential Information” Defined. “Confidential Information” means any data, materials or information that is not generally known to the public and that is owned or possessed by either party (“Disclosing Party”) and is disclosed to the other party (“Receiving Party”), whether in oral, written, digital or other form of disclosure. Confidential Information also includes any third party information which Disclosing Party is required to keep confidential (“Third Party Confidential Information”). Without limitation of the foregoing, the parties agree that the terms of these Terms of Service, the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form constitute Confidential Information (yet the fact that the parties have entered into the agreement and the general nature of the relationship between the parties is not confidential). These Terms of Service, the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form may be disclosed by the Receiving Party in proper due diligence processes in business transactions in accordance with industry standards and subject to an obligation to maintain such information as confidential.
b. “Trade Secrets” Defined. “Trade Secret” shall mean information owned or possessed by Disclosing Party, without regard to form, that is disclosed by Disclosing Party to Receiving Party, including but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers, in any form or format, which is not commonly known by or available to the public and which: (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade Secrets specifically include any Confidential Information satisfying the above criteria.
c. Excluded From “Confidential Information.” Confidential Information does not include any data or information which Receiving Party can demonstrate: (i) was already known to Receiving Party at the time of disclosure; (ii) was independently developed by Receiving Party without reference to Disclosing Party’s Confidential Information; (iii) is in the public domain; (iv) was rightfully disclosed to Receiving Party by a third party without obligation of confidentiality; or (v) the fact that Client is a coAction.com customer and the general nature of the work performed by coAction.com for Client.
d. Prohibition Against Disclosure and Use of Confidential Information and Trade Secrets. During the term of these Terms of Service, and indefinitely thereafter, Receiving Party will not, except as otherwise expressly directed by Disclosing Party, use, copy, or disclose, or permit any unauthorized person access to, any of Disclosing Party’s Trade Secrets, except as expressly permitted herein and necessary for accomplishment of activities required hereby. During the term of these Terms of Service and for a period of two (2) years after termination hereof, Receiving Party will not use, copy, or disclose, or permit any unauthorized person access to, Disclosing Party’s Confidential Information, except as expressly directed by such party or as permitted herein. Receiving Party agrees to comply with any confidentiality agreements or the like to which Disclosing Party is a party to the extent Disclosing Party notifies Receiving Party of such agreements and obligations in writing prior to the Effective Date of these Terms or Service.
e. Confidential Information and Trade Secrets Disseminated Only on Need to Know Basis. Receiving Party agrees that it will disclose Confidential Information or Trade Secrets to its employees or agents only as necessary for the performance of Receiving Party’s obligations under this Agreement. Prior to disclosing Confidential Information or Trade Secrets to such employees or agents, Receiving Party will verify with Disclosing Party that such employees or agents are subject to appropriate confidentiality agreements.
f. Safeguards Against Disclosure. Receiving Party agrees to use at least the same degree of care to avoid and prevent disclosure of Disclosing Party’s Confidential Information and Trade Secrets as Receiving Party uses to prevent disclosure of its own Confidential Information and Trade Secrets, or Receiving Party shall exercise a commercially reasonable degree of care, whichever degree of care is higher.
g. Equitable Relief. Receiving Party acknowledges and agrees that the misappropriation, unauthorized use or disclosure of Confidential Information or Trade Secrets would cause irreparable harm to the Disclosing Party. In the event of any breach of any part of this Section by Receiving Party, Disclosing Party shall be entitled to equitable relief, including but not limited to a temporary restraining order, temporary injunction and/or a permanent injunction. The rights of Disclosing Party under this Section are in addition to the rights that Disclosing Party may have under these Terms of Service, common law or statutory law.
7. Use of Electronic Communications: coAction.com may communicate with Client regarding the coAction.com Services or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form by means of electronic communications, including sending electronic mail to the email address Client provides to coAction.com. Client agrees that coAction.com may communicate by means of electronic communications the following: these Terms of Service (and revisions or amendments), notices or disclosures regarding the coAction.com Services or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form, payment authorizations, and any other matter relating to Client’s use of the coAction.com Services or any software or hardware products provided by coAction.com to Client pursuant to any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form. Client should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Electronic communications shall be deemed received by Client when coAction.com sends the electronic communication to the email address Client provided to coAction.com at the time of any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form or as revised by Client thereafter in accordance with these Terms of Service. For those communications or records that coAction.com is otherwise required under applicable law to provide in a written paper form to Client, Client agrees that coAction.com may provide such communications or records by means of electronic communications. The following additional terms will apply to such electronic communications: (a) Client may contact coAction.com through the coAction.com Services contact page to request another electronic copy of the electronic communication without a fee; (b) Client may request a paper copy of such an electronic communication, and coAction.com reserves the right to charge a fee to provide such paper copy; (c) Client may contact coAction.com through the contact page to update its registration information used for electronic communications or to withdraw consent to receive electronic communications; and (d) coAction.com reserves the right to terminate Client’s use of the coAction.com Services if Client declines or withdraws consent to receive electronic communications from coAction.com.
8. Notices: In addition to the electronic communications authorized under the Section entitled “Use of Electronic Communications”, statements, notices and other communications to Client given or made pursuant to these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form shall be sent by certified mail, registered mail, or private carrier such that the notifying party can prove both delivery of notice and that the recipient received the notice (or refused to receive the notice) and the respective dates thereof. Notices shall be sent to the address provided in the Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form or to any successor address provided by either party. Additionally, duplicate notices shall be sent via fax and email to the last known fax and email addresses of the recipient.
9. Intellectual Property Rights:
coAction.com alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the coAction.com Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the coAction.com Technology or the Intellectual Property Rights owned by coAction.com. The coAction.com name, the coAction.com logo, and the product names associated with the Service are trademarks of coAction.com or third parties, and no right or license is granted to use them.
10. Charges and Payment of Fees:
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges as listed in the attached proposal would be due as agreed upon in the proposal. The Subscription payments may be made annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide coAction.com with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. coAction.com reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
11. Excess Data Storage Fees:
The maximum disk storage space provided to you at no additional charge is the greater of 5 GB or an aggregate of 100 MB per User license. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. coAction.com will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by coAction.com to so notify you shall not affect your responsibility for such additional storage charges. coAction.com reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
12. Billing and Renewal:
coAction.com charges and collects in advance for use of the Service. coAction.com will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to as agreed to in the proposal. Fees for other services will be charged on an as-quoted basis. coAction.com's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on coAction.com's income.
You agree to provide coAction.com with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, coAction.com reserves the right to terminate your access to the Service in addition to any other legal remedies.
13. Non-Payment and Suspension:
In addition to any other rights granted to coAction.com herein, coAction.com reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or coAction.com initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that coAction.com may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
coAction.com reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that coAction.com has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
14. Termination upon Expiration/Reduction in Number of Licenses:
This Agreement commences on the Effective Date. The Initial Term will be as you elect during the subscription process or as otherwise mutually agreed upon, commencing on the date you agree to pay for the Service by completing the online subscription form or otherwise. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at coAction.com's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term or a 6 month notice in writing acceptable only after year I of the term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), coAction.com will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that coAction.com has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
15. Client Indemnification: Client (“Indemnifying Party”) agrees to indemnify and hold coAction.com, its affiliates, subsidiaries, corporate parents, officers, owners, directors, attorneys, employees and agents (collectively, the “Indemnified Party”) harmless from and against any and all claims, losses, damages, expenses, judgments or other liabilities (including but not limited to reasonable attorneys’ fees which are incurred prior to, during or after trial, bankruptcy proceeding or any alternative dispute mechanism, and including but not limited to tax liability, interest and penalties) for which Indemnified Party becomes obligated to pay due to (a) any use by the Client of any coAction.com Services or any products provided by coAction.com to Client pursuant to these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form, (b) any breach of these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form by Indemnifying Party, its employees or agents, (c) property damage or personal injury caused by the negligent or willful acts or omissions by Indemnifying Party, its employees or agents, or (d) violation or alleged violation of any law or rights of any third party by Indemnifying Party, its employees or agents.
16. coAction.com Indemnification: coAction.com shall indemnify and hold Client, its affiliates, subsidiaries, corporate parents, officers, owners, directors, attorneys, employees and agents harmless from and against any and all claims, losses, damages, expenses, judgments or other liabilities (including but not limited to reasonable attorneys’ fees which are incurred prior to, during or after trial, bankruptcy proceeding or any alternative dispute mechanism) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued prior to the effective date of these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form, or a trademark of a third party; or (ii) a claim, which if true, would constitute a violation by coAction.com of its representations or warranties; provided that Client (a) promptly gives written notice of the claim to coAction.com; (b) gives coAction.com sole control of the defense and settlement of the claim (provided that coAction.com may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provides to coAction.com all available information and assistance; and (d) has not compromised or settled such claim. coAction.com shall have no indemnification obligation, and Client shall indemnify coAction.com pursuant to these Terms of Servicet, for claims arising from any infringement arising from the combination of the Service with any of Client’s products, service, hardware or business process(s).
17. Entire Agreement and Modification: These Terms of Service together with any applicable Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form represents the entire agreement between the parties as to the matters referenced herein. These Terms of Service may be modified in the manner provided in Section 8 above, and any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form is not subject to change or modification except by written agreement signed by both parties.
18. Severability: The covenants set forth in these Terms of Service shall be considered and construed as separate and independent covenants. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or provision of these Terms of Service.
19. Termination: Except to the extent provided in any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form, these Terms of Service may be terminated by either party, with or without cause, upon not less than 30 days written notice of termination to the other party (however, prior to a Client providing notice of termination, the Client must make full payment of any amounts due coAction.com and in no circumstance shall Client be entitled to any refund of any payments made to Client prior to any such termination). In the event Client fails to make any timely payment under these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form, coAction.com may cease performing Services or terminate these Terms of Service or any Services Agreement, Order Form, Statement of Work or Quote effective upon written notice to Client.
20. Survivability: The terms and conditions of these Terms of Service that, by their sense and context, are intended to survive the termination, performance or completion of these Terms of Service shall so survive.
21. Applicable Law: These Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to the conflict of laws provisions thereof. The state and federal courts located in the State of New Jersey shall have personal and exclusive jurisdiction of the parties for the purposes of adjudicating all disputes that may arise under these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form. The parties hereby waive all objections to venue and personal jurisdiction in those forums for such disputes and agree that service of process may be made by in accordance with the notice provision of these Terms of Service. The parties specifically exclude from application to these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
22. Waiver: No waiver, amendment or modification of any provision of these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form or any agreements in connection with such waiver, amendment, or modification shall be valid unless in writing duly executed by both parties. No delay or failure by either party to exercise or enforce at any time any right or provision of these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form will be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right and provision of these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form. No single waiver will constitute a continuing or subsequent waiver.
23. Internet Delays: COACTION.COM'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COACTION.COM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
24. Export Control: The coAction.com Service uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The User of the Service acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
25. Warranty; Limitations and Cap on Liability:
COACTION.COM PROVIDES THE COACTION.COM SERVICES, DELIVERABLES AND ANY SOFTWARE OR HARDWARE PRODUCTS (COLLECTIVELY, “PRODUCTS”) DELIVERED PURSUANT TO THE THESE TERMS OF SERVICE OR ANY LICENSE SCHEDULE, PROFESSIONAL SERVICES SCHEDULE, STATEMENT OF WORK OR ORDER FORM ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. COACTION.COM DOES NOT ASSUME ANY RESPONSIBILITY FOR THE PROPER INSTALLATION AND USE OF THE SERVICES OR ANY PRODUCTS. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT DOES COACTION.COM WARRANT THAT ANY COACTION.COM EXISTING SOFTWARE, OTHER DELIVERABLES OR PRODUCTS LICENSED OR OTHERWISE PROVIDED TO CLIENT AS PART OF THE COACTION.COM SERVICES WILL OPERATE UNINTERRUPTED OR WILL BE FREE FROM DEFECTS OR ERRORS OR THAT THE APPLICATIONS CONTAINED IN THE COACTION.COM EXISTING SOFTWARE, ANY DELIVERABLES OR OTHER PRODUCTS ARE DESIGNED TO MEET ALL OF CLIENT’S OR ITS AUTHORIZED AFFILIATES’ BUSINESS REQUIREMENTS. IN ANY EVENT THAT THE COACTION.COM SERVICES, ANY DELIVERABLES OR OTHER PRODUCTS DO NOT OPERATE AS INTENDED, COACTION.COM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. NO ORAL OR WRITTEN INFORMATION (UNLESS SUCH WRITTEN INFORMATION IS SIGNED BY AN AUTHORIZED OFFICER OF COACTION.COM) OR ADVICE GIVEN BY ANY COACTION.COM EMPLOYEE OR REPRESENTATIVE SHALL CREATE ANY WARRANTY AND CLIENT MAY NOT RELY ON SUCH INFORMATION OR ADVICE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. COACTION.COM MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE PROVIDED AS PART OF, OR IN CONNECTION WITH, ANY COACTION.COM SERVICES, DELIVERABLES OR OTHER PRODUCTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CLIENT. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF INITIAL DELIVERY OF THE APPLICABLE COACTION.COM SERVICES. THE COACTION.COM SERVICES, DELIVERABLES OR OTHER PRODUCTS ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE FAILURE OF THE SERVICES, DELIVERABLES OR OTHER PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE.
ANYTHING TO THE CONTRARY HEREIN OR IN ANY OTHER SERVICE AGREEMENT, STATEMENT OF WORK OR ORDER FORM NOTWITHSTANDING THE MAXIMUM LIABILITY OF COACTION.COM OR ITS EMPLOYEES, AGENTS OR CONTRACTORS (AND CLIENT’S MAXIMUM REMEDY) WITH RESPECT TO COACTION.COM SERVICES, DELIVERABLES OR OTHER PRODUCTS PROVIDED OR TO BE PROVIDED UNDER THESE TERMS OF SERVICE, THE LICENSE SCHEDULE, PROFESSIONAL SERVICES SCHEDULE, STATEMENT OF WORK OR ORDER FORM OR WITH RESPECT TO ANY CLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID BY CLIENT TO COACTION.COM PURSUANT TO THESE TERMS OF SERVICE, THE SERVICE AGREEMENT, ANY STATEMENT OF WORK OR ODER FORM, AS APPLICABLE, WITHIN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO ANY CLAIM OF LIABILITY BY CLIENT AGAINST COACTION.COM OR ITS EMPLOYEES, AGENTS OR CONTRACTORS. IN NO EVENT SHALL COACTION.COM OR ITS EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE (AND CLIENT SHALL HAVE NO REMEDY) (I) UNDER ANY THEORY INCLUDING CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES 0R EXEMPLARY OR PUNITIVE DAMAGES, OR (II) FOR DAMAGES FOR LOSS OF DATA, UNAVAILABILITY OF DATA OR THE SYSTEM, LOSS OF USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF REVENUE, PROFITS OR CUSTOMERS, OR SOFTWARE OR COMPUTER HARDWARE MALFUNCTION, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THESE TERMS OF SERVICE WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
26. Force Majeure: Neither party shall be liable for any delay or non-performance of any covenant (other than any covenant including any payment obligation) contained herein nor shall any such delay or non-performance constitute a default hereunder, or give rise to any liability or damages if such delay or non-performance is caused by an event of “force majeure.” The term “force majeure” means events beyond the reasonable control of such party. All parties shall make a good faith effort to effectuate these Terms of Service or any Subscription Schedule, Professional Services Schedule, Statement of Work or Order Form where there is an occurrence of a force majeure during and after the occurrence to the extent commercially reasonable.