Common use of Disclaimer and Limitation on Liability Clause in Contracts

Disclaimer and Limitation on Liability. a. ANY SERVICE PROVIDED FOR HEREIN BY INCOMMON OR ANY OF INCOMMON’S THIRD PARTY SERVICE PROVIDERS IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INCOMMON EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, ANY REPRESENTATION OR WARRANTY THAT ANY SERVICE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED. NO STATEMENT, ORAL OR WRITTEN, GIVEN BY INCOMMON, ANY OF ITS EMPLOYEES, OR ANY OTHER PERSON WILL CREATE A WARRANTY, NOR MAY ANY PARTICIPANT OR OTHER PERSON RELY ON ANY SUCH STATEMENT FOR ANY PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, INCOMMON’S, INTERNET2’S AND EACH OF THEIR RESPECTIVE AFFILIATES’, AGENTS’ AND CONTRACTORS’ TOTAL AND AGGREGATE LIABILITY FOR ANY LIABILITIES, LOSSES, JUDGMENTS, DAMAGES (INCLUDING REASONABLE ATTORNEY’S FEES), WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHERWISE, UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEPT FOR DIRECT DAMAGES RESULTING SOLELY FROM INTENTIONAL AND WILLFUL ACTIONS OF INCOMMON, INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE ANNUAL PARTICIPATION FEE PAID BY THE PARTICIPANT TO INCOMMON UNDER THIS AGREEMENT DURING ANY CONSECUTIVE TWELVE

Disclaimer and Limitation on Liability. a. ANY SERVICE PROVIDED FOR HEREIN BY INCOMMON OR ANY OF INCOMMON’S THIRD PARTY SERVICE PROVIDERS IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INCOMMON EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, ANY REPRESENTATION OR WARRANTY THAT ANY SERVICE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED. NO STATEMENT, ORAL OR WRITTEN, GIVEN BY INCOMMON, ANY OF ITS EMPLOYEES, OR ANY OTHER PERSON WILL CREATE A WARRANTY, NOR MAY ANY PARTICIPANT OR OTHER PERSON RELY ON ANY SUCH STATEMENT FOR ANY PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, INCOMMON’S, INTERNET2’S AND EACH OF THEIR RESPECTIVE AFFILIATES’, AGENTS’ AND CONTRACTORS’ TOTAL AND AGGREGATE LIABILITY FOR ANY LIABILITIES, LOSSES, JUDGMENTS, DAMAGES (INCLUDING REASONABLE ATTORNEY’S FEES), WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHERWISE, UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEPT FOR DIRECT DAMAGES RESULTING SOLELY FROM INTENTIONAL AND WILLFUL ACTIONS OF INCOMMON, INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE ANNUAL PARTICIPATION FEE PAID BY THE PARTICIPANT TO INCOMMON UNDER THIS AGREEMENT DURING ANY CONSECUTIVE TWELVETWELVE (12) MONTH PERIOD, MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE DATE OF THE FIRST EVENT GIVING RISE TO THE CLAIM IN SUCH CONSECUTIVE TWELVE (12) MONTH PERIOD AND THE DENOMINATOR OF WHICH IS TWELVE (12). InCommon and its third party service providers reserve the right to interrupt, suspend or reduce the provision of any Service to Participant, or any other person, including the Participant's end users, when such action is necessary in InCommon's sole judgment. A Co-Federation and its third party service providers may also have the right to interrupt, suspend or reduce the provision of any Service to Participant or any other person, including the Participant's end users pursuant to the terms and conditions of the policies of such Co-Federation. InCommon will endeavor where reasonably possible, but does not promise, to provide advance notice to Participant of any such interruption, suspension, or reduction. As soon as possible following the interruption, suspension, or reduction InCommon will contact the Participant in an attempt to resolve any problems and restore Service. INCOMMON, INCOMMON’S THIRD PARTY SERVICE PROVIDERS, INTERNET2, AND EACH OF THEIR AFFILIATES, CONTRACTORS AND AGENTS SHALL NOT BE LIABLE TO PARTICIPANT OR OTHER PERSON FOR ANY ERROR IN TRANSMISSION OR LACK THEREOF OF THE SERVICES (WHETHER PROVIDED BY INCOMMON, INCOMMON’S THIRD PARTY SERVICE PROVIDERS OR A CO-FEDERATION OR CO-FEDERATION THIRD PARTY SERVICE PROVIDERS) OR FOR ANY INTERRUPTION OR TERMINATION OF THE SERVICES, EITHER PARTIAL OR TOTAL, WHETHER OR NOT PRIOR NOTICE OF ANY SUCH INTERRUPTION OR TERMINATION HAS BEEN GIVEN, PROVIDED THAT SUCH INTERRUPTION OR TERMINATION IS EITHER (1) ACCIDENTAL (INCLUDING ANY ERROR DUE TO THE NEGLIGENCE OF ANY PERSON) OR (2) AN INTENTIONAL ACTION OR DECISION OF INCOMMON WHICH IS THOUGHT NECESSARY BY INCOMMON IN INCOMMON’S SOLE JUDGMENT. Neither InCommon nor Internet2 shall be liable to Participant (or its end-users) or any other person for claims or damages caused in whole or part by (i) the fault or negligence of Participant or by the failure of Participant to perform its responsibilities; (ii) third party claims against Participant, except to the extent that such claims arise solely from the intentional and willful actions of InCommon or Internet2; or (iii) any act or omission of any other party furnishing products or services to InCommon or Participant (including, for the avoidance of doubt, any Co-Federation). Furthermore, InCommon, Internet2 and each of their respective affiliates, contractors and agents shall not be liable, either in contract, in tort or otherwise, for unauthorized access to Participant's transmission facilities, its equipment, or unauthorized access to or alteration, delay, theft or destruction of Participant's (or its end users') data files, Metadata, programs, procedures or other information, no matter the cause, except for direct damages arising solely from the intentional and willful actions of InCommon. InCommon does not endorse any content including but not limited to Metadata, audio, video, text, data or other communications originating or transmitted from any site owned or operated by Participant, including any third party content or materials, routed to, passed through and/or stored on or otherwise transmitted or routed to any other Participant, Co-Federation Participant or user (“Participant Content”) or any opinion, recommendation, or advice expressed therein. InCommon does not intend to review the Participant Content, and Participant assumes all responsibility for use of such Participant Content. Participant shall make no claim against XxXxxxxx regarding said Participant Content. The Steering Committee of InCommon or its designees, is responsible for the governing policies of the Federation, its purposes and uses, and Participant agrees to be bound by its official, approved policies with regard to Federation participation. Participant acknowledges that InCommon does not conduct its own review or due diligence concerning the qualifications of prospective participants in the Federation, but instead relies on the promises made by Participants that they will observe and abide by all operating, intellectual property, and other requirements imposed by InCommon or other Participants in connection with their participation in the Federation. Participant also acknowledges that InCommon does not have any input or control over the admittance of participants into any Co-Federations.

Disclaimer and Limitation on Liability. a. ANY SERVICE PROVIDED FOR HEREIN BY INCOMMON, INCOMMON PARTICIPANTS OR ANY OF INCOMMON’S 'S THIRD PARTY SERVICE PROVIDERS IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INCOMMON EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY SERVICE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED. NO STATEMENT, ORAL OR WRITTEN, GIVEN BY INCOMMON, ANY OF ITS EMPLOYEES, OR ANY OTHER PERSON WILL CREATE A WARRANTY, NOR MAY ANY PARTICIPANT OR OTHER PERSON RELY ON ANY SUCH STATEMENT FOR ANY PURPOSE. FURTHERMORE, NOTWITHSTANDING ANYTHING TO THE CONTRARYANY CONTRARY PROVISION SET FORTH IN THIS AGREEMENT, PARTICIPANT EXPRESSLY AGREES THAT IN NO EVENT SHALL INCOMMON’S, INTERNET2’S AND EACH OF THEIR RESPECTIVE AFFILIATES’, AGENTS’ AND CONTRACTORS’ TOTAL AND AGGREGATE 'S ENTIRE LIABILITY FOR ANY LIABILITIES, LOSSES, CLAIMS, JUDGMENTS, DAMAGES (INCLUDING REASONABLE ATTORNEY’S FEES), WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHERWISE), UNDER, EXPENSES OR COSTS (INCLUDING REASONABLE FEES AND EXPENSES OF COUNSEL) ARISING OUT OF, OR RELATED TO OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEPT FOR DIRECT DAMAGES RESULTING SOLELY FROM INCOMMON'S INTENTIONAL AND WILLFUL ACTIONS OF INCOMMONACTIONS, INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE ANNUAL PARTICIPATION FEE PAID BY THE PARTICIPANT TO INCOMMON UNDER THIS AGREEMENT DURING ANY CONSECUTIVE TWELVETWELVE (12) MONTH PERIOD, MULTIPLIED BY A FRACTION THE NUMERATOR OF WHICH IS THE NUMBER OF MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM IN SUCH CONSECUTIVE TWELVE (12) MONTH PERIOD AND THE DENOMINATOR OF WHICH IS TWELVE (12). Nothing in this Agreement shall be construed as prohibiting Participant from seeking injunctive relief from a court of competent jurisdiction. InCommon reserves the right to interrupt, suspend or reduce the provision of any service to Participant, or any other person, including the Participant's end users, when such action is necessary in InCommon's sole judgment. InCommon will endeavor where reasonably possible, but does not promise, to provide advance notice to Participant of any such interruption, suspension, or reduction. As soon as possible following the interruption, suspension, or reduction InCommon will contact the Participant and any participants in an attempt to resolve any problems and restore service. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, INCOMMON, INCOMMON PARTICIPANTS, AND INCOMMON THIRD PARTY SERVICE PROVIDERS OR THEIR DESIGNEES SHALL NOT BE LIABLE TO PARTICIPANT OR OTHER PERSON FOR ANY ERROR IN TRANSMISSION OR LACK THEREOF OR FOR ANY INTERRUPTION OR TERMINATION OF PARTICIPATION, EITHER PARTIAL OR TOTAL, EITHER INTENTIONAL OR ACCIDENTAL (INCLUDING ANY ERROR, INTERRUPTION OR TERMINATION DUE TO THE DELIBERATE MISCONDUCT OR NEGLIGENCE OF ANY PERSON), WHETHER OR NOT PRIOR NOTICE OF ANY SUCH INTERRUPTION OR TERMINATION HAS BEEN GIVEN. InCommon shall not be liable to Participant (or its end-users) for claims or damages caused in whole or part by (i) the fault or negligence of InCommon Participants or by the failure of InCommon Participants to perform their responsibilities; (ii) third party claims against InCommon Participants. Furthermore, InCommon shall not be liable, either in contract, in tort or otherwise, for unauthorized access to Participant's transmission facilities, its equipment, or unauthorized access to or alteration, delay, theft or destruction of Participant's (or its end users') data files, programs, procedures or other information, except for direct damages arising solely from the intentional and willful actions of InCommon. Participant is and shall be solely responsible for any or all use of any service or resource obtained as a result of participating in the Federation, including but not limited to audio, video, text, data or other communications originating or transmitted from any site owned or operated by Participant, including any third party content or materials, routed to, passed through and/or stored on or otherwise transmitted or routed to any other InCommon Participant or user ("Participant Content"). InCommon does not intend to review the Participant Content, and Participant assumes all responsibility for use of such Participant Content. Participant shall make no claim against InCommon regarding said Participant Content. The Steering Committee of InCommon or its designees, is responsible for the governing policies of the federation, its purposes and uses, and Participant agrees to be bound by its official, approved policies with regard to federation participation. Participant acknowledges that InCommon does not conduct its own review or due diligence concerning the qualifications of prospective participants in the Federation, but instead relies on the promises made by InCommon Participants that they will observe and abide by all operating, intellectual property, and other requirements imposed by InCommon or InCommon Participants in connection with their participation in the Federation.

Disclaimer and Limitation on Liability. a. a.ANY SERVICE PROVIDED FOR HEREIN BY INCOMMON, INCOMMON PARTICIPANTS OR ANY OF INCOMMON’S THIRD PARTY SERVICE PROVIDERS IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INCOMMON EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, ANY REPRESENTATION OR WARRANTY THAT ANY SERVICE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED. NO STATEMENT, ORAL OR WRITTEN, GIVEN BY INCOMMON, ANY OF ITS EMPLOYEESEMPLOYEESEMPOYEES, OR ANY OTHER PERSON WILL CREATE A WARRANTY, NOR MAY ANY PARTICIPANT OR OTHER PERSON RELY ON ANY SUCH STATEMENT FOR ANY PURPOSE. FURTHERMORE, NOTWITHSTANDING ANYTHING ANYANYTHING TO THE CONTRARYCONTRARY PROVISION SET FORTH IN THIS AGREEMENT, PARTICIPANT EXPRESSLY AGREES THAT IN NO EVENT SHALL, INCOMMON’S’S ENTIRE, INTERNET2’S AND EACH OF THEIR RESPECTIVE AFFILIATES’, AGENTS’ AND CONTRACTORS’ TOTAL AND AGGREGATE LIABILITY FOR ANY LIABILITIES, LOSSES, CLAIMS, JUDGMENTS, DAMAGES (INCLUDING REASONABLE ATTORNEY’S FEES), WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHERWISE), EXPENSES OR COSTS (INCLUDING REASONABLE FEES AND EXPENSES OF COUNSEL), UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEPT FOR DIRECT DAMAGES RESULTING SOLELY FROM INCOMMON’S INTENTIONAL AND WILLFUL ACTIONS ACTIONS, OF INCOMMON, INTERNET2 AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS AND CONTRACTORS, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE ANNUAL PARTICIPATION FEE PAID BY THE PARTICIPANT TO INCOMMON UNDER THIS AGREEMENT DURING ANY ANYANY CONSECUTIVE TWELVETWELVE (12) MONTH PERIOD, MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE DATE OF THE FIRST EVENT GIVING RISE TO THE CLAIM IN SUCH CONSECUTIVE TWELVE (12) MONTH PERIOD AND THE DENOMINATOR OF WHICH IS TWELVE (12).