Disclaimers and Limitations. Manager agrees that Formidium Parties will not be responsible for any Loss of any Fund, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to Formidium, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BE LIABLE TO MANAGER, ANY FUND OR ANY FUND INVESTOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Loss.
Appears in 3 contracts
Samples: Formidium User Agreement, Formidium User Agreement, Formidium User Agreement (July 2022)
Disclaimers and Limitations. Manager agrees that Formidium Parties will not be responsible for any Loss of any Fund, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to Formidium, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES THE SOFTWARE PACKAGE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSEITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED OR STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- INFRINGEMENTMERCHANTABILITY, TITLENONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IT&S DISCLAIMS RESPONSIBILITY AND ANY LIABILITY FOR ANY ERRORS IN THE SOFTWARE PACKAGE AND ANY CONSEQUENCES, FUNCTIONALITY DECISIONS, JUDGMENTS OR MERCHANTABILITYRESULTS ATTRIBUTABLE TO OR RELATED TO ANY USES OF THE SOFTWARE PACKAGE. MANAGER IN NO EVENT WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT IT&S BE LIABLE TO MANAGER, ANY FUND OR ANY FUND INVESTOR CUSTOMER FOR ANY SPECIALFINES, INCIDENTALPENALTIES, INDIRECT DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY THE USE OR INABILITY TO REPUTATION, USE THE SOFTWARE PACKAGE EVEN IF FORMIDIUM IT&S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. The provisions of this Section 4 shall apply to the fullest extent permitted by lawIT&S DOES NOT WARRANT THAT THE SOFTWARE PACKAGE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE PACKAGE WILL BE UNINTERRUPTED OR WITHOUT ERROR. For purposes of these TermsCUSTOMER ACKNOWLEDGES THAT THE SOFTWARE PACKAGE HAS NOT BEEN DEVELOPED ACCORDING TO CUSTOMER’S SPECIFICATIONS AND HAS NOT OTHERWISE BEEN CUSTOM-MADE FOR CUSTOMER. CUSTOMER ACKNOWLEDGES THAT IN THE EVENT OF A FAILURE OF THE SOFTWARE PACKAGE, “Loss” means damagesCUSTOMER SHALL BE LEFT WITHOUT REMEDY AGAINST IT&S. CUSTOMER ALSO ACKNOWLEDGES THAT EXCEPT FOR THE LIMITATIONS OF REMEDIES AND WARRANTIES CONTAINED IN THIS AMENDMENT, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single LossIT&S WOULD NOT PROVIDE THE SOFTWARE PACKAGE TO CUSTOMER.
Appears in 2 contracts
Samples: Computer and Data Processing Services Agreement (Lawton Surgery Investment Company, LLC), Computer and Data Processing Services Agreement (NPMC Holdings, LLC)
Disclaimers and Limitations. Manager agrees Buyer expressly acknowledges that Formidium Parties will there exist no warranties or representations of Seller, expressed or implied, other than those expressly set forth in SECTION 9.1 of this Agreement, and Seller has no obligation to determine whether there are material matters that should be disclosed to Buyer to the extent those matters have not be responsible for been expressly set forth herein. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED (OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 9.1 OF THIS AGREEMENT), BUYER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO BUYER ON AN "AS IS, WHERE IS" BASIS, AND "WITH ALL FAULTS," AND BUYER ACKNOWLEDGES THAT BUYER HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO BUYER'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN) AND THAT BUYER IS RELYING SOLELY ON ITS OWN EXAMINATION AND INSPECTIONS OF THE PROPERTY AND NOT ON ANY STATEMENTS OR REPRESENTATIONS MADE BY SELLER OR ANY AGENTS OR REPRESENTATIVES OF SELLER, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN. ADDITIONALLY, BUYER HEREBY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY PORTION THEREOF, OR WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, OR ANY OTHER ASPECT, OF THE PROPERTY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, SELLER HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING: (I) THE NATURE AND CONDITION OF THE PROPERTY OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO, ITS WATER, SOIL, OR GEOLOGY, OR THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT THEREON, OR ANY IMPROVEMENTS BUYER MAY ELECT TO CONSTRUCT THEREON OR THAT ARE ALREADY CONSTRUCTED THEREON, OR ANY INCOME TO BE DERIVED THEREFROM, OR ANY EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE SAME; (II) THE ABSENCE OF ASBESTOS OR ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN OR UNDER ANY PROPERTY NEAR, ADJACENT TO OR ABUTTING THE PROPERTY; (III) THE MANNER OF CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE IMPROVEMENTS ON THE PROPERTY; (IV) THE NATURE, EXTENT OF OR STATUS OF ANY EASEMENT, RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER SIMILAR MATTER PERTAINING TO THE PROPERTY, OR PORTION THEREOF; AND (V) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OF THE PROPERTY OR PORTION THEREOF WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. THE PROVISIONS OF THIS SECTION 9.5 SHALL SURVIVE THE EXECUTION AND DELIVERY OF THE DEED BY SELLER AND THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. Buyer hereby waives and releases Seller, Seller's Affiliates, representatives, agents and employees from any Loss present or future claims (hereinafter referred to as the "Claims") arising from or relating to the presence or alleged presence of hazardous substances in, on, under or about the Property including, without limitation, any Fund, Fund investor claims under or Fund beneficial owner resulting from: on account of (i) inaccuracies the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same may have been or deficiencies in Materials provided by Manager; may be amended from time to time, and similar federal, state or local statutes, and any regulations promulgated thereunder, (ii) Manager’s failure to comply any other federal, state or local law, ordinance, rule or regulation, now or hereafter in effect, that deals with all applicable laws concerning its provision or otherwise in any manner relates to, environmental matters of Materials to Formidiumany kind, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BE LIABLE TO MANAGER, ANY FUND OR ANY FUND INVESTOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwiseAgreement. For the avoidance purposes hereof the term "hazardous substances" shall have the meaning given to such term or similar terms under any applicable federal, state or local laws, rules or regulations. The foregoing waiver set forth above shall not be deemed to be effective until the second anniversary of doubtthe Closing Date (the second anniversary of the Closing Date is herein referred to as the "Release Date"), multiple whereupon such release shall automatically be in full force and effect from and after the Release Date with respect to any claims arising out for which Seller has not been notified prior to the Release Date in writing. Notwithstanding anything contained in this Agreement to the contrary, in the event that Buyer notifies Seller of or based upon any any Claims against Seller prior to the same actRelease Date, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions Seller's liability with respect thereto shall be considered a single Lossin no event exceed $500,000.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Arvida JMB Partners L P)
Disclaimers and Limitations. Manager agrees that Formidium Parties will not be responsible for any Loss of any FundTO THE MAXIMUM EXTENT PERMITTED BY LAW, Fund investor or Fund beneficial owner resulting from: ANYTHING (iE.G. INCLUDING BUT NOT LIMITED TO THE PRODUCT) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to FormidiumPROVIDED BY SD IN RELATION TO THIS AGREEMENT IS PROVIDED “AS IS”, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, AND SD HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, IRRESPECTIVE OF WHETHER EXPRESS, IMPLIED OR IMPLIED, STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENTARISING BY CUSTOM OR TRADE USAGE OR OTHERWISE, INCLUDING ANY FOR EXAMPLE BUT NOT LIMITED TO (A) WARRANTIES OF NON- NON-INFRINGEMENT, TITLE, (B) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY AND (C) WARRANTIES THAT ANY MATERIAL OR MERCHANTABILITY. MANAGER SERVICE (E.G. INCLUDING BUT NOT LIMITED TO THE PRODUCT) WILL (I) MEET THE REQUIREMENTS OF LICENSEE, (II) OPERATE IN THE COMBINATIONS WHICH MAY BE SOLELY RESPONSIBLE SELECTED FOR MATERIALS PROVIDED USE BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGERLICENSEE, AND FORMIDIUM MAKES NO REPRESENTATIONS (III) OPERATE UNINTERRUPTED OR WARRANTIES AS TOERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL SD SHALL NOT BE LIABLE TO MANAGER, ANY FUND OR ANY FUND INVESTOR UNDER THIS AGREEMENT FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, INDIRECT CONSEQUENTIAL, PUNITIVE OR CONSEQUENTIAL EXEMPLARY DAMAGES ARISING OUT OF MATERIALS PROVIDED ANY KIND. IN NO EVENT SHALL SD'S AGGREGATE LIABILITY UNDER THIS AGREEMENT, OR RELATING TO THE PRODUCT, EXCEED ALLl AMOUNTS PAID BY MANAGER LICENSEE TO SD DURING THE PERIOD IN WHICH EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED, IRRESPECTIVE OF LEGAL THEORY (HOWEVER ARISINGE.G. TORT, INCLUDING NEGLIGENCECONTRACT OR OTHERWISE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED OF THE POSSIBILITY . A REFUND OF SUCH DAMAGESAMOUNTS SHALL BE LICENSEE’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort ALL PROVISIONS OF THIS SECTION VI ARE A MATERIAL CONDITION OF (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single LossAND CONSIDERATION FOR) THIS AGREEMENT.
Appears in 1 contract
Samples: Evaluation Agreement
Disclaimers and Limitations. Manager agrees that Formidium Parties will not be responsible for any Loss of any Funda. TO THE EXTENT ALLOWED BY LAW, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to Formidium, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS THE SOFTWARE AND THE ACCESS TO ANY AND ALL RELATED SOFTWARE SERVICES ARE PROVIDED TO SUBSCRIBER "AS IS" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESSORAL OR WRITTEN, EXPRESS OR IMPLIED. CBI SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR STATUTORYCONDITIONS OF MERCHANTABILITY, WITH REGARD TO THE MARKETPLACESATISFACTORY QUALITY, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY SUBSCRIBER AND CUSTOMERS. NO ORAL OR MERCHANTABILITYWRITTEN INFORMATION OR ADVICE GIVEN BY CBI OR CBI AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. MANAGER CBI DOES NOT REPRESENT THAT ITS SERVERS WILL BE SOLELY RESPONSIBLE AVAILABLE AT ALL TIMES OR WILL BE FUNCTIONING PROPERLY WHEN SUBSCRIBER OR OTHERS WISH TO ACCESS THE FUNCTIONALITY OF THE SOFTWARE HEREUNDER. CBI’S SERVERS MAY BE UNAVAILABLE AT TIMES FOR MATERIALS PROVIDED BY MANAGER MAINTENANCE OR ANY THIRD-PARTY ON BEHALF FOR A VARIETY OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMSOTHER REASONS. FORMIDIUM PARTIES WILL CBI SHALL NOT BE LIABLE TO MANAGER, ANY FUND SUBSCRIBER OR ANY FUND INVESTOR CUSTOMERS FOR ANY SPECIALPERIODS OF UNAVAILABILITY AND SUBSCRIBER AND CUSTOMERS SHALL NOT BE ENTITLED TO ANY REFUNDS FOR THOSE PERIODS WHEN THE SERVERS ARE NOT AVAILABLE OR ARE NOT FUNCTIONING PROPERLY. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR CONDITIONS, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE EXTENT PROHIBITED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single LossAPPLICABLE LAWS.
Appears in 1 contract
Samples: Subscription and License Agreement
Disclaimers and Limitations. Manager agrees that Formidium Parties will not be responsible for any Loss of any FundNOTHING IN THIS AGREEMENT SHALL BE CONSTRUED, Fund investor or Fund beneficial owner resulting fromEXPRESSED OR IMPLIED, AS: (iI) inaccuracies or deficiencies in Materials provided by ManagerA WARRANTY OR REPRESENTATION BY LICENSOR AS TO THE VALIDITY OR SCOPE OF ANY OF THE LICENSED PATENTS; (iiII) Manager’s failure to comply with all applicable laws concerning its provision of Materials to FormidiumA WARRANTY OR REPRESENTATION BY LICENSOR THAT ANYTHING MADE AND/OR SOLD UNDER ANY RIGHT GRANTED IN THIS AGREEMENT IS FREE FROM INFRINGEMENT OR WILL NOT INFRINGE, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES DIRECTLY, CONTRIBUTORILY, BY INDUCEMENT OR OTHERWISE, UNDER THE LAWS OF ANY KINDCOUNTRY, WHETHER EXPRESS, IMPLIED ANY PATENT OR STATUTORY, OTHER INTELLECTUAL PROPERTY RIGHT THAT IS NOT A LICENSED PATENT AND IT SHALL BE THE SOLE RESPONSIBILITY OF THE LICENSEE TO MAKE SUCH DETERMINATION AS IS NECESSARY WITH REGARD RESPECT TO THE MARKETPLACEACQUISITION OF LICENSES UNDER ANY OTHER PATENTS OR OTHER INTELLECTUAL PROPERTY; (III) A WARRANTY OR REPRESENTATION BY LICENSOR THAT THE LICENSED PATENTS INCLUDE ALL PATENTS NECESSARY FOR COMPLIANCE WITH THE RELEVANT SPECIFICATION THROUGHOUT THE WORLD; (IV) CONFERRING ANY RIGHT TO USE, MATERIALS AND CONTENTIN ADVERTISING, INCLUDING PUBLICITY OR OTHERWISE, ANY WARRANTIES OF NON- INFRINGEMENTNAME, TITLETRADE NAME, FITNESS FOR A PARTICULAR PURPOSETRADEMARK, FUNCTIONALITY OR MERCHANTABILITY. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-CONTRACTION, ABBREVIATION OR SIMULATION THEREOF; OR (V) AN OBLIGATION UPON EITHER PARTY ON BEHALF TO MAKE ANY DETERMINATION AS TO THE APPLICABILITY, SUITABILITY, USEFULNESS OR FITNESS OF MANAGERANY PATENT TO ANY PRODUCT, AND FORMIDIUM MAKES NO REPRESENTATIONS SERVICE, INVENTION, TECHNOLOGY OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BE LIABLE TO MANAGER, ANY FUND PROCESS OR ANY FUND INVESTOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED PART THEREOF OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these TermsOTHER PARTY, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single LossITS AFFILIATES OR THIRD PARTIES.
Appears in 1 contract
Samples: Patent Sublicense Agreement
Disclaimers and Limitations. Manager agrees Purchaser expressly acknowledges that Formidium Parties will there exist no warranties or representations of Seller, expressed or implied, other than those expressly set forth in the Closing Documents or in this Agreement, and Seller has no obligation to determine whether there are any material matters that should be disclosed to Purchaser to the extent those matters have not be responsible for any Loss of any Fund, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to Formidium, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplacebeen expressly set forth herein. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD NOTWITHSTANDING ANYTHING TO THE MARKETPLACECONTRARY HEREIN CONTAINED (OTHER THAN AS EXPRESSLY SET FORTH IN THE CLOSING DOCUMENTS OR IN THIS AGREEMENT), MATERIALS THE PURCHASER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND CONTENTAGREES THAT THE CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO PURCHASER ON AN "AS IS" BASIS, AND "WITH ALL FAULTS," AND PURCHASER ACKNOWLEDGES THAT PURCHASER HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO PURCHASER'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN) AND THAT PURCHASER IS RELYING SOLELY ON ITS OWN EXAMINATION AND INSPECTIONS OF THE PROPERTY AND NOT ON ANY STATEMENTS OR REPRESENTATIONS MADE BY SELLER OR ANY AGENTS OR REPRESENTATIVES OF SELLER, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN OR IN THE CLOSING DOCUMENTS, ADDITIONALLY, PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN OR IN THE CLOSING DOCUMENTS, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO, ANY WARRANTIES WARRANTY OF NON- INFRINGEMENTCONDITION, TITLEHABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER PURPOSE OF THE PROPERTY OR ANY THIRD-PARTY ON BEHALF PORTION THEREOF, OR WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, OR ANY OTHER ASPECT, OF MANAGERTHE PROPERTY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN OR IN THE CLOSING DOCUMENTS, AND FORMIDIUM MAKES NO REPRESENTATIONS SELLER HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR WARRANTIES REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING: (1) THE NATURE AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BE LIABLE TO MANAGER, ANY FUND CONDITION OF THE PROPERTY OR ANY FUND INVESTOR PART THEREOF, INCLUDING BUT NOT LIMITED TO, ITS WATER, SOIL, OR GEOLOGY, OR THE SUITABILITY THEREOF FOR ANY SPECIALAND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, INCIDENTALOR ANY IMPROVEMENTS PURCHASER MAY ELECT TO CONSTRUCT THEREON OR THAT ARE ALREADY CONSTRUCTED THEREON, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT ANY INCOME TO BE DERIVED THEREFROM, OR ANY EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE SAME; (2) THE ABSENCE OF MATERIALS PROVIDED BY MANAGER ASBESTOS OR ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN OR UNDER ANY PROPERTY NEAR, ADJACENT TO OR ABUTTING THE PROPERTY; (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY 3) THE MANNER OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST CONSTRUCTION OR CONDITION OR STATE OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED REPAIR OR LACK OF REPAIR OF ANY OF THE POSSIBILITY IMPROVEMENTS ON THE PROPERTY; (4) THE NATURE, EXTENT OF SUCH DAMAGESOR STATUS OF ANY EASEMENT, RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCES, LICENSE, RESERVATION, CONDITION OR OTHER SIMILAR MATTER PERTAINING TO THE PROPERTY, OR PORTION THEREOF; AND (5) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OF THE PROPERTY OR PORTION THEREOF WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. The provisions of this Section 4 shall apply THE PROVISIONS OF THIS PARAGRAPH 18 SHALL SURVIVE THE EXECUTION AND DELIVER OF THE DEED BY SELLER AND THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. Purchaser hereby waives and releases Seller, Seller's Affiliates, representatives, agents and employees from any present or future claims (hereinafter referred to as the "Claims") arising from or relating to the fullest extent permitted by law. For purposes presence or alleged presence of these Termshazardous substances in, “Loss” means damageson, claimsunder or about the Property, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited without limitation, any claims under or on account of (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same may have been or may be amended from time to claims sounding time, and similar federal, state or local law, ordinance, rule or regulation, now or hereafter in tort (such as for negligenceeffect, misrepresentation that deals with or otherwise)otherwise in any manner relates to, contract (whether express or implied), by statuteenvironmental matters of any kind, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise(ii) this Agreement. For the avoidance of doubtpurposes hereof the term "hazardous substances" shall have the meaning given to such term or similar terms under any applicable federal, multiple claims arising out of state or based upon the same actlocal laws, error rules or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Lossregulations.
Appears in 1 contract
Disclaimers and Limitations. Manager agrees that Formidium Parties will not be responsible for any Loss of any FundARTICLE 27.1. EXCEPT AS SPECIFICALLY PROVIDED HEREIN TO THE CONTRARY, Fund investor or Fund beneficial owner resulting fromPURCHASER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO PURCHASER ON AN “AS IS, WHERE IS” BASIS AND WITH ALL FAULTS, AND PURCHASER ACKNOWLEDGES THAT PURCHASER HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO PURCHASER’S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN) AND THAT PURCHASER IS RELYING SOLELY ON ITS OWN EXAMINATION AND INSPECTIONS OF THE PROPERTY AND NOT ON ANY STATEMENTS OR REPRESENTATIONS MADE BY SELLER OR ANY AGENTS OR REPRESENTATIVES OF SELLER, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN. ADDITIONALLY, PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY PORTION THEREOF, OR WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, OR ANY OTHER ASPECT, OF THE PROPERTY. SELLER HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING: (i) inaccuracies or deficiencies in Materials provided by ManagerTHE NATURE AND CONDITION OF THE PROPERTY OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ITS WATER, SOIL, OR GEOLOGY, OR THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, OR ANY IMPROVEMENTS PURCHASER MAY ELECT TO CONSTRUCT THEREON, OR ANY INCOME TO BE DERIVED THEREFROM, OR ANY EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE SAME; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to FormidiumTHE ABSENCE OF ASBESTOS OR ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s ActIN OR UNDER THE PROPERTY OR ON, IN OR UNDER ANY PROPERTY ADJACENT TO OR ABUTTING THE PROPERTY; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES THE MANNER OF CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF ANY KINDIMPROVEMENTS; AND (iv) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OF THE PROPERTY OR ANY PORTION THEREOF WITH ANY LAWS, WHETHER EXPRESSRULES, IMPLIED ORDINANCES OR STATUTORYREGULATIONS OF ANY GOVERNMENT OR OTHER BODY; AND (v) THE NATURE OR EXTENT OF ANY EASEMENT, WITH REGARD RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER SIMILAR MATTER PERTAINING TO THE MARKETPLACEPROPERTY, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BE LIABLE TO MANAGER, ANY FUND OR ANY FUND INVESTOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single LossPORTION THEREOF.
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Disclaimers and Limitations. Manager Subscriber understands and agrees that Formidium Parties will the service rendered under this Agreement relies on broadband Internet service and that inherent in this system is a failure when the Subscriber’s broadband Internet has an interruption in service. Subscriber understands and agrees that Provider may not be responsible for any Loss of any Fundcontrol the broadband internet service. BBT MAKES NO WARRANTIES CONCERNING THE WI-FI SERVICES PROVIDED HEREUNDER, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to Formidium, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED EXPRESS OR STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENTIMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON- INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEPURPOSE OR USE AND ANY WARRANTIES REGARDING THE DESIGN, FUNCTIONALITY CONDITIONS OF, OR MERCHANTABILITYQUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY WI-FI SERVICES. MANAGER IN NO EVENT WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BBT BE LIABLE TO MANAGER, THE SUBSCRIBER OR TO ANY FUND OR ANY FUND INVESTOR THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, INDIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE)LOSSES OR DAMAGES, INCLUDING, BY WAY WITHOUT LIMITATION, LOSS OF EXAMPLE, LOST REVENUE, LOST LOSS OF GOODWILL, LOSS OF BUSINESS, OR LOSS OF PROFITS, BUSINESS INTERRUPTIONARISING IN ANY MANNER FROM THESE WI-FI TERMS AND CONDITIONS AND THE PERFORMANCE OR NONPERFORMANCE OF BBT’s OBLIGATIONS HEREUNDER, COST HOWEVER CAUSED AND ON ANY THEORY OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATIONLIABILITY, EVEN IF FORMIDIUM BBT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by lawSUBSCRIBER’S SOLE REMEDY RELATED TO ANY DEFECT OR FAILURE OF THE WI-FI SERVICES IS LIMITED TO A REFUND OF THE PRO RATED PORTION OF THE MONTHLY CHARGES FOR THE AFFECTED WI-FI SERVICES UP TO AN AGGREGATE MAXIMUM OF ONE MONTH’S CHARGES. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Loss.Subscriber Initials
Appears in 1 contract
Samples: Service End User Agreement
Disclaimers and Limitations. Manager agrees Buyer expressly acknowledges that Formidium Parties will there exist no warranties or representations of Seller, expressed or implied, other than those expressly set forth in SECTION 9.1 of this Agreement, and Seller has no obligation to determine whether there are material matters that should be disclosed to Buyer to the extent those matters have not be responsible for been expressly set forth herein. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED (OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 9.1 OF THIS AGREEMENT, BUYER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO BUYER ON AN "AS IS, WHERE IS" BASIS, AND "WITH ALL FAULTS," AND BUYER ACKNOWLEDGES THAT BUYER HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO BUYER'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN) AND THAT BUYER IS RELYING SOLELY ON ITS OWN EXAMINATION AND INSPECTIONS OF THE PROPERTY AND NOT ON ANY STATEMENTS OR REPRESENTATIONS MADE BY SELLER OR ANY AGENTS OR REPRESENTATIVES OF SELLER, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN. ADDITIONALLY, BUYER HEREBY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY PORTION THEREOF, OR WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, OR ANY OTHER ASPECT, OF THE PROPERTY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, SELLER HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING: (I) THE NATURE AND CONDITION OF THE PROPERTY OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO, ITS WATER, SOIL, OR GEOLOGY, OR THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT THEREON, OR ANY IMPROVEMENTS BUYER MAY ELECT TO CONSTRUCT THEREON OR THAT ARE ALREADY CONSTRUCTED THEREON, OR ANY INCOME TO BE DERIVED THEREFROM, OR ANY EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE SAME; (II) THE ABSENCE OF ASBESTOS OR ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN OR UNDER ANY PROPERTY NEAR, ADJACENT TO OR ABUTTING THE PROPERTY; (III) THE MANNER OF CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE IMPROVEMENTS ON THE PROPERTY; (IV) THE NATURE, EXTENT OF OR STATUS OF ANY EASEMENT, RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER SIMILAR MATTER PERTAINING TO THE PROPERTY, OR PORTION THEREOF; AND (V) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OF THE PROPERTY OR PORTION THEREOF WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. THE PROVISIONS OF THIS SECTION 9.5 SHALL SURVIVE THE EXECUTION AND DELIVERY OF THE DEED BY SELLER AND THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. Buyer hereby waives and releases Seller, Seller's Affiliates, representatives, agents and employees from any Loss present or future claims (hereinafter referred to as the "Claims") arising from or relating to the presence or alleged presence of hazardous substances in, on, under or about the Property including, without limitation, any Fund, Fund investor claims under or Fund beneficial owner resulting from: on account of (i) inaccuracies the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same may have been or deficiencies in Materials provided by Manager; may be amended from time to time, and similar federal, state or local statutes, and any regulations promulgated thereunder, (ii) Manager’s failure to comply any other federal, state or local law, ordinance, rule or regulation, now or hereafter in effect, that deals with all applicable laws concerning its provision or otherwise in any manner relates to, environmental matters of Materials to Formidiumany kind, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide and maintain accurate information through the Marketplace. FORMIDIUM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED BY MANAGER OR ANY THIRD-PARTY ON BEHALF OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMS. FORMIDIUM PARTIES WILL NOT BE LIABLE TO MANAGER, ANY FUND OR ANY FUND INVESTOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, COST OF REPLACEMENT MARKETPLACES, AND INJURY TO REPUTATION, EVEN IF FORMIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Section 4 shall apply to the fullest extent permitted by law. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwiseAgreement. For the avoidance purposes hereof the term "hazardous substances" shall have the meaning given to such term or similar terms under any applicable federal, state or local laws, rules or regulations. The foregoing waiver set forth above shall not be deemed to be effective until the second anniversary of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Loss.Closing Date (the second anniversary of
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Arvida JMB Partners L P)
Disclaimers and Limitations. Manager agrees that Formidium Parties will Standard Warranty. The warranties of DiscoverOrg applicable to the Services are stated in the terms of use agreement between DiscoverOrg and the End User and are the only warranties made by DiscoverOrg relating to the Services. Such warranties are made to the End User (and not be responsible for any Loss of any FundPartner) and are subject to any, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Manager; (ii) Manager’s failure to comply with all applicable laws concerning its provision of Materials to Formidium, including but not limited to Manager’s failure to comply with any and all provision of the Adviser’s Act; or (iii) Manager’s failure to provide accompanying disclaimers, limitations, and maintain accurate information through the Marketplaceother terms. FORMIDIUM SPECIFICALLY • Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, DISCOVERORG MAKES NO WARRANTIES, AND DISCOVERORG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE MARKETPLACE, MATERIALS AND CONTENT, INCLUDING ANY WARRANTIES OF NON- INFRINGEMENT, TITLEMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITYNON-INFRINGEMENT. MANAGER WILL BE SOLELY RESPONSIBLE FOR MATERIALS PROVIDED • Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, DISCOVERORG’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF REFERRAL FEES PAID BY MANAGER OR ANY THIRD-PARTY DISCOVERORG TO PARTNER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON BEHALF WHICH SUCH CAUSE OF MANAGER, AND FORMIDIUM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND IS NOT RESPONSIBLE FOR SUCH ITEMSACTION AROSE. FORMIDIUM PARTIES WILL NOT BE LIABLE THIS LIMITATION APPLIES TO MANAGER, ANY FUND OR ANY FUND INVESTOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT ALL CAUSES OF MATERIALS PROVIDED BY MANAGER (HOWEVER ARISING, INCLUDING NEGLIGENCE)ACTION IN THE AGGREGATE, INCLUDING, BY WAY WITHOUT LIMITATION, BREACH OF EXAMPLECONTRACT, LOST REVENUEBREACH OF WARRANTY, LOST NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. • Exclusion of Certain Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, DISCOVERORG SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE OR BUSINESS INTERRUPTIONOPPORTUNITIES, COST REGARDLESS OF REPLACEMENT MARKETPLACES, THE FORM OF ACTION AND INJURY TO REPUTATION, EVEN IF FORMIDIUM DISCOVERORG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESTHEREOF. • INDEMNITY • Misrepresentation and Wrongful Conduct. Partner shall be responsible for, and shall indemnify DiscoverOrg against and hold DiscoverOrg harmless from, any and all claims, damages, suits, judgments and expenses (including reasonable attorneys’ fees) arising out of any misrepresentation or wrongful conduct of Partner or its employees or agents. Partner agrees that in the course of advertising and selling the Services it shall make no representations or claims other than those contained in the standard descriptions and advertising literature for the Services furnished to Partner by DiscoverOrg. In the event that Partner makes any representation or claim other than those permitted above, DiscoverOrg shall have no responsibility, liability, obligation, or expense relating to or resulting from such representation or claim by Partner and Partner shall indemnify DiscoverOrg against any such responsibility, liability, obligation, or expense. • Intellectual Property. DiscoverOrg agrees to defend Partner against any action brought against Partner with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that the Services infringes or violates any U.S. intellectual property rights of third parties not affiliated with Licensee, including without limitation, rights associated with patents, copyrights, trademarks, or trade secrets. • Notice. In claiming any indemnification under Section 7.1 or 7.2, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing Sections. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld. • OWNERSHIP & PROPRIETARY RIGHTS • Property Rights. Partner agrees and acknowledges that this Agreement does not transfer or convey to Partner or its End Users any ownership in or to the Services, or in or to any patents, trademarks, inventions, copyrights, trade secrets or any other intellectual property relating to the Services, and that all of the foregoing are owned and held exclusively by DiscoverOrg and/or its licensors, if any. • Modification. This Agreement does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate, or otherwise copy or reproduce any of the Services. Partner shall not develop derivative works or derivative products with the use or aid of any Services, or reproduce or disassemble, decompile, reverse engineer any Services. Partner shall not modify the Services or bundle the Services with any non-DiscoverOrg services or components without express written consent from DiscoverOrg. • Feedback. Any recommendations, ideas, contributions, corrections, enhancements, improvements, or the like relating to the Services that are submitted to DiscoverOrg by Partner and are incorporated, implemented, or used by DiscoverOrg in the Services, or in any computer programs, products, technology, or processes of DiscoverOrg, shall be the sole property of DiscoverOrg and the same, together with all copyrights, trade secrets, patent rights, and other intellectual property thereto shall be and hereby are assigned to DiscoverOrg. • CONFIDENTIALITY Partner acknowledges that, by reason of its relationship to DiscoverOrg under this Agreement, Partner may have access to certain information and materials concerning business, plans, End Users, technology, and products that are confidential. Such information and materials are of substantial value to DiscoverOrg which value would be impaired if such information were disclosed to third parties. Partner shall not disclose to third parties, or use in any way for its own account or for the account of any third party, any such confidential information disclosed to it by DiscoverOrg. Partner shall not publish any descriptions of the Services beyond the descriptions published by DiscoverOrg. • TRADEMARKS & TRADE NAMES • Trademark Rights. Subject to the terms and conditions of this Agreement, DiscoverOrg grants to Partner a nonexclusive, nontransferable, royalty-free right to use the DiscoverOrg name and logo (“Trademarks”), but only to promote and market the Services during the term of this Agreement and only in accordance with DiscoverOrg’s then-current trademark usage policies as published by DiscoverOrg on its web site or as otherwise communicated to Partner from time to time. Partner acknowledges that DiscoverOrg is the owner of the Trademarks and Partner agrees that it will do nothing inconsistent with such ownership and that all use of the Trademarks by Partner shall inure to the benefit of DiscoverOrg. Upon use of DiscoverOrg trademarks, Partner agrees to notify DiscoverOrg within thirty (30) days of its use and to supply a copy of the material containing trademarks, including disclosure of distribution and intended recipients of the material. Partner acknowledges that the Trademarks are valid under applicable law. Partner shall not register or attempt to register the Trademarks in any country or jurisdiction. Partner shall not make any express or implied statement or suggestion, or use the Trademarks in any manner, that dilutes, tarnishes, degrades, disparages, or otherwise reflects adversely on DiscoverOrg or its business, products or services. • No Conflict. Partner agrees that it shall not adopt a trademark, trade name, uniform resource locator (“URL”), Internet domain name, or symbol confusingly similar to any trademark or name of DiscoverOrg or its products. If it is found that Partner has used or is using or has previously registered such prior to or after entering into this Agreement, Partner shall irrevocably and without limitation or additional consideration assign, transfer, and convey all rights, privileges, registrations, and titles, if any, claimed by Partner to DiscoverOrg and shall then strictly comply with the provisions of this Section 4 10. DiscoverOrg may (in addition to any other available remedies) terminate this Agreement immediately if Partner opposes, contests, or challenges in any manner DiscoverOrg’s ownership and use of its name and trademarks. • TERM & TERMINATION • Term of the Agreement. This Agreement shall apply commence as of the Effective Date and shall continue in effect for one (1) year. This Agreement shall thereafter automatically renew for successive one-year terms. • Termination. Either party may terminate this Agreement at any time upon 30 days prior written notice to the fullest extent permitted other party. This Agreement shall automatically terminate in the event that either party makes any assignment for the benefit of creditors, files a petition for bankruptcy, or is adjudged bankrupt or becomes insolvent or is place in the hands of a receiver. • DiscoverOrg reserves the right to immediately suspend or terminate the provision of the Service to any End User that violates DiscoverOrg’s End User License Agreement. • Effect of Termination. Upon termination of this Agreement for any reason, all rights and licenses granted to Partner under this Agreement will immediately terminate. Partner shall continue to be entitled to receive any amounts owing to Partner up to the date of termination, after payment of which Referral Fees to Partner will be discontinued, unless otherwise stated in this Agreement. Termination of this Agreement shall not act as a waiver of any breach of this Agreement or as a release of either party from any liability for breach of such party’s obligations under this Agreement. Notwithstanding any other provision in this Agreement, DiscoverOrg will not by law. For purposes reason of these Termsthe termination of this Agreement be liable for compensation, “Loss” means damagesreimbursement, claimsor damages on account of any loss of prospective profits on anticipated sales, liabilitiesor on account of any expenditures, lossesinvestments, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding or other commitments made in tort (such as for negligence, misrepresentation connection with Partner’s business or otherwise), contract (whether express or implied), by statutegoodwill, or otherwise. • Survival. Provision of this Agreement which by their nature or express terms extend beyond the duration of this Agreement or require performance after termination of this Agreement, claims seeking any kind shall survive termination of damages and claims seeking to apply any standard of liability such as breach of contract, negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Lossthis Agreement.
Appears in 1 contract
