Common use of Representations Disclaimer of Warranties Clause in Contracts

Representations Disclaimer of Warranties. 10.1 DFCI represents and warrants that it has the right to enter into this Agreement and to grant Licensee the licenses granted hereunder. 10.2 DFCI MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PATENT, TRADEMARK, SOFTWARE, NON-PUBLIC OR OTHER INFORMATION, OR TANGIBLE RESEARCH PROPERTY, LICENSED OR OTHERWISE PROVIDED TO LICENSEE HEREUNDER AND HEREBY DISCLAIMS THE SAME. 10.3 DFCI DOES NOT WARRANT THE VALIDITY OF THE PATENT RIGHTS LICENSED HEREUNDER AND MAKES NO REPRESENTATION WHATSOEVER WITH REGARD TO THE SCOPE OF THE LICENSED PATENT RIGHTS OR THAT SUCH PATENT RIGHTS MAY BE EXPLOITED BY LICENSEE, AFFILIATE OR SUBLICENSEE WITHOUT INFRINGING OTHER PATENTS. IF BIOLOGICAL MATERIALS ARE LICENSED HEREUNDER, DFCI MAKES NO REPRESENTATION THAT SUCH MATERIALS OR THE METHODS USED IN MAKING OR USING SUCH MATERIALS ARE FREE FROM LIABILITY FOR PATENT INFRINGEMENT OR THAT SUCH MATERIALS ARE NOT SUBJECT TO CLAIMS OF JOINT OWNERSHIP BY THIRD PARTIES. 10.4 THE LIABILITY OF DFCI, ITS AGENTS, OR ITS EMPLOYEES, WITH RESPECT TO ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSE ARISING OUT OF THE PERFORMANCE OR NON PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, STATUTORY OR OTHERWISE SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES INCURRED AS A RESULT OF DFCI’s FAILURE TO PERFORM ITS OBLIGATIONS AS REQUIRED BY THIS AGREEMENT AND SHALL NOT EXCEED IN THE AGGREGATE A SUM EQUAL TO THE TOTAL AMOUNTS PAYABLE TO DFCI UNDER THIS AGREEMENT.

Representations Disclaimer of Warranties. 10.1 DFCI Customer represents and warrants that it has validly entered into the right Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR EDGE2WEB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE. IN NO EVENT WILL EITHER CUSTOMER OR EDGE2WEB HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services. The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement Contract and to grant Licensee the licenses granted hereunder. 10.2 DFCI MAKES NO WARRANTYpricing for the Services. We will defend Customer from and against any and all third party claims, EXPRESS OR IMPLIEDactions, INCLUDINGsuits, WITHOUT LIMITATIONproceedings, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PATENT, TRADEMARK, SOFTWARE, NON-PUBLIC OR OTHER INFORMATION, OR TANGIBLE RESEARCH PROPERTY, LICENSED OR OTHERWISE PROVIDED TO LICENSEE HEREUNDER AND HEREBY DISCLAIMS THE SAME. 10.3 DFCI DOES NOT WARRANT THE VALIDITY OF THE PATENT RIGHTS LICENSED HEREUNDER AND MAKES NO REPRESENTATION WHATSOEVER WITH REGARD TO THE SCOPE OF THE LICENSED PATENT RIGHTS OR THAT SUCH PATENT RIGHTS MAY BE EXPLOITED BY LICENSEE, AFFILIATE OR SUBLICENSEE WITHOUT INFRINGING OTHER PATENTS. IF BIOLOGICAL MATERIALS ARE LICENSED HEREUNDER, DFCI MAKES NO REPRESENTATION THAT SUCH MATERIALS OR THE METHODS USED IN MAKING OR USING SUCH MATERIALS ARE FREE FROM LIABILITY FOR PATENT INFRINGEMENT OR THAT SUCH MATERIALS ARE NOT SUBJECT TO CLAIMS OF JOINT OWNERSHIP BY THIRD PARTIES. 10.4 THE LIABILITY OF DFCI, ITS AGENTS, OR ITS EMPLOYEES, WITH RESPECT TO ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSE ARISING OUT OF THE PERFORMANCE OR NON PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT WHETHER BASED ON CONTRACT, WARRANTY, TORT and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (INCLUDING WITHOUT LIMITATION NEGLIGENCEa “Claim Against Customer”), STRICT LIABILITYand will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, STATUTORY OR OTHERWISE SHALL BE LIMITED TO DIRECTand for amounts paid by Customer under a settlement we approve of in connection with, ACTUAL DAMAGES INCURRED AS A RESULT OF DFCIa Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data; and (b) any modification, combination or development of the Services that is not performed by us. Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Xxxxxxxx’s FAILURE TO PERFORM ITS OBLIGATIONS AS REQUIRED BY THIS AGREEMENT AND SHALL NOT EXCEED IN THE AGGREGATE A SUM EQUAL TO THE TOTAL AMOUNTS PAYABLE TO DFCI UNDER THIS AGREEMENTexclusive remedy against us for, any Claim Against Customer. Customer will defend Edge2Web from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the Edge2Web for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Edge2Web in connection with or as a result of, and for amounts paid by Edge2Web under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and Edge2Web’s exclusive remedy against Customer for, any Claim Against Us. Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

Representations Disclaimer of Warranties. 10.1 DFCI (a) Licensor represents and warrants to Licensees that it (i) Licensor has the right to enter into this Agreement and to grant Licensee the licenses granted hereunderherein, (ii) Licensee's use of the Licensed Marks in the same manner as used by Licensees in the conduct of their respective operations prior to the Closing Date does not and will not violate or infringe the Intellectual Property rights of any Person who is not a party to this Agreement, and (iii) the Licensed Marks comprise all the trademarks, service marks, trade names and trade dress owned or controlled by Licensor and its Affiliates as were used by Licensees prior to the Closing Date in connection with the operation of the Business. 10.2 DFCI (b) EXCEPT AS SET FORTH IN SECTION 7.1(a), NEITHER PARTY MAKES NO WARRANTYANY REPRESENTATION AND WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IN RELATION TO THE LICENSED MARKS OR ANY OTHER MATTER RELATED TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, BUT SUBJECT TO THE REPRESENTATIONS AND WARRANTIES INCLUDED IN SECTION 7.1(a), EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT AND NONINFRINGEMENT. (c) LIMITATIONS ON DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY PATENTOTHER PERSON FOR ANY INDIRECT, TRADEMARKINCIDENTAL, SOFTWARE, NON-PUBLIC OR OTHER INFORMATIONSPECIAL, OR TANGIBLE RESEARCH PROPERTYCONSEQUENTIAL DAMAGES INCURRED BY ANY PERSON, LICENSED OR OTHERWISE PROVIDED FOR ANY PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH ANY CAUSE OF ACTION ARISING FROM OR RELATED TO LICENSEE HEREUNDER AND HEREBY DISCLAIMS THE SAME. 10.3 DFCI DOES NOT WARRANT THE VALIDITY THIS AGREEMENT, REGARDLESS OF THE PATENT RIGHTS LICENSED HEREUNDER THEORY OF LIABILITY ON WHICH SUCH CLAIMS ARE BASED, AND MAKES NO REPRESENTATION WHATSOEVER WITH REGARD TO THE SCOPE EVEN IF SUCH PARTY IS ADVISED OF THE LICENSED PATENT RIGHTS POSSIBILITY OF SUCH DAMAGES OR THAT SUCH PATENT RIGHTS MAY BE EXPLOITED BY LICENSEE, AFFILIATE OR SUBLICENSEE WITHOUT INFRINGING OTHER PATENTS. IF BIOLOGICAL MATERIALS ARE LICENSED HEREUNDER, DFCI MAKES NO REPRESENTATION THAT SUCH MATERIALS OR THE METHODS USED IN MAKING OR USING SUCH MATERIALS ARE FREE FROM LIABILITY FOR PATENT INFRINGEMENT OR THAT SUCH MATERIALS ARE NOT SUBJECT TO CLAIMS OF JOINT OWNERSHIP BY THIRD PARTIESCLAIMS. 10.4 THE LIABILITY OF DFCI, ITS AGENTS, OR ITS EMPLOYEES, WITH RESPECT TO ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSE ARISING OUT OF THE PERFORMANCE OR NON PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, STATUTORY OR OTHERWISE SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES INCURRED AS A RESULT OF DFCI’s FAILURE TO PERFORM ITS OBLIGATIONS AS REQUIRED BY THIS AGREEMENT AND SHALL NOT EXCEED IN THE AGGREGATE A SUM EQUAL TO THE TOTAL AMOUNTS PAYABLE TO DFCI UNDER THIS AGREEMENT.

Representations Disclaimer of Warranties. 10.1 DFCI represents You represent and warrants warrant that it has you have validly entered into the right to enter into this Agreement and have the legal power to grant Licensee the licenses granted hereunder. 10.2 DFCI MAKES NO WARRANTYdo so. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE DEVELOPER OFFERINGS, SERVICE, DEVELOPER DOCUMENTATION AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED BY US ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. PROCORE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT PURPOSE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR DEVELOPER OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WHILE PROCORE ATTEMPTS TO MAKE YOUR USE OF OUR DEVELOPER OFFERINGS AND ANY PATENTCONTENT THEREIN SAFE, TRADEMARK, SOFTWARE, NON-PUBLIC WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICE OR DEVELOPER OFFERINGS ARE FREE OF VIRUSES OR OTHER INFORMATIONHARMFUL COMPONENTS, CONTENT OR MATERIALS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE DEVELOPER OFFERINGS AND SERVICE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH PROCORE AND PROCORE’S RESPECTIVE AFFILIATES, SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. IN NO EVENT WILL PROCORE, ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES AND AGENTS (“PROCORE GROUP”) HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR TANGIBLE RESEARCH PROPERTY, LICENSED OR OTHERWISE PROVIDED TO LICENSEE HEREUNDER AND HEREBY DISCLAIMS THE SAME. 10.3 DFCI DOES NOT WARRANT THE VALIDITY OF THE PATENT RIGHTS LICENSED HEREUNDER AND MAKES NO REPRESENTATION WHATSOEVER WITH REGARD TO THE SCOPE OF THE LICENSED PATENT RIGHTS OR THAT SUCH PATENT RIGHTS MAY BE EXPLOITED BY LICENSEE, AFFILIATE OR SUBLICENSEE WITHOUT INFRINGING OTHER PATENTS. IF BIOLOGICAL MATERIALS ARE LICENSED HEREUNDER, DFCI MAKES NO REPRESENTATION THAT SUCH MATERIALS OR THE METHODS USED IN MAKING OR USING SUCH MATERIALS ARE FREE FROM LIABILITY FOR PATENT INFRINGEMENT OR THAT SUCH MATERIALS ARE NOT SUBJECT TO CLAIMS OF JOINT OWNERSHIP BY THIRD PARTIES. 10.4 THE LIABILITY OF DFCI, ITS AGENTS, OR ITS EMPLOYEES, WITH RESPECT TO ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSE PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PERFORMANCE SERVICE OR NON PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT DEVELOPER OFFERINGS HOWEVER CAUSED, WHETHER BASED ON IN CONTRACT, WARRANTYTORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU OR THE THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PROCORE GROUP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE OR DEVELOPER OFFERINGS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED US$100. The limitations under this section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. You will indemnify, defend (INCLUDING WITHOUT LIMITATION NEGLIGENCEat Procore's request) and hold Procore Group and their respective employees, agents, subprocessors, contractors, customers, end users and licensees (the “Procore Parties”) harmless from and against any claims, losses, costs, expenses (including reasonable attorneys' fees), STRICT LIABILITYdamages or liabilities based on or arising from: (a) your actual or alleged misuse or your End User’s actual or alleged misuse of the Service or Developer Offerings, STATUTORY OR OTHERWISE SHALL BE LIMITED TO DIRECT(b) your Developer Data, ACTUAL DAMAGES INCURRED AS A RESULT OF DFCIApplication(s) and any content or data included therein or processed thereby, (c) your relationships or interactions with any End Users or third party; (d) you or your authorized user’s FAILURE TO PERFORM ITS OBLIGATIONS AS REQUIRED BY THIS AGREEMENT AND SHALL NOT EXCEED IN THE AGGREGATE A SUM EQUAL TO THE TOTAL AMOUNTS PAYABLE TO DFCI UNDER THIS AGREEMENTbreach or alleged breach of the Agreement; (e) any Security Incidents related to your Applications, infrastructure or third party services supporting your Applications or infrastructure; (f) your or your End User’s violation of your End User Terms or End User Privacy Policy, (g) your actual or alleged infringement of any third party’s intellectual property rights or rights to privacy or publicity, or (h) your actual or alleged violation of any law or regulation. Procore reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You may not settle a claim without Xxxxxxx's prior written consent (not to be unreasonably withheld).