|
<br />4
<br />
<br />EP represents and warrants that (a) it will provide
<br />the Support Services in a manner consistent with
<br />generally accepted industry standards, and (b)
<br />the Application(s) shall perform substantially in
<br />accordance with the Documentation under
<br />normal use. Customer represents and warrants
<br />that it has the full right and license to use the
<br />Customer Data in connection with the
<br />Application(s) and that such use shall not infringe
<br />on any third party intellectual property rights.
<br />Customer is responsible for all activity occurring
<br />under Customer's user accounts and shall abide
<br />by all applicable local, state, national and foreign
<br />laws, treaties and regulations in connection with
<br />Customer's use of the Application(s), including
<br />those related to data privacy, international
<br />communications and the transmission of
<br />technical or personal data. By this Agreement,
<br />EP does not attain ownership in any Customer
<br />Data. Customer, not EP, shall have sole
<br />responsibility for the accuracy, quality, integrity,
<br />legality, reliability, appropriateness, and
<br />intellectual property ownership or right to use of
<br />all Client Data, and EP shall not be responsible or
<br />liable for the deletion, correction, destruction,
<br />damage, loss or failure to store any Client Data.
<br />EP shall use reasonable efforts to protect Client
<br />Data behind a secure firewall system, and to
<br />conduct data backups, as more fully set forth on
<br />Schedule A. By executing this Agreement, EP
<br />represents that it has not been identified, and has
<br />not utilized the services of any agent or
<br />subcontractor identified, on the list created by the
<br />State Treasurer pursuant to G.S. 147-86.58. By
<br />executing this Agreement, EP represents that it
<br />has not been identified, and has not utilized the
<br />services of any agent or subcontractor identified,
<br />on the list created by the State Treasurer
<br />pursuant to G.S. 147-86.81. By executing this
<br />Agreement, EP represents that it is and shall
<br />remain in compliance with Article 2 of Chapter 64
<br />of the North Carolina General Statutes.
<br />
<br />SECTION 8
<br />Disclaimer of Warranties; Limitation of
<br />Liability
<br />
<br />EXCEPT AS EXPRESSLY SET FORTH IN
<br />SECTION 7, THERE ARE NO OTHER
<br />REPRESENTATIONS, WARRANTIES,
<br />CONDITIONS, OR OTHER TERMS
<br />CONCERNING THE APPLICATION(S) OR THE
<br />SUPPORT SERVICES, AND EP AND ITS
<br />LICENSORS EXPRESSLY DISCLAIM ANY
<br />OTHER WARRANTIES WITH REGARD TO THE
<br />APPLICATION(S) OR THE SUPPORT
<br />SERVICES, INCLUDING WITHOUT
<br />LIMITATION ALL IMPLIED WARRANTIES OF
<br />MERCHANTABILITY, FITNESS FOR A
<br />PARTICULAR PURPOSE, TITLE AND NON-
<br />INFRINGEMENT OF THIRD-PARTY RIGHTS.
<br />IN NO EVENT SHALL EP OR ITS LICENSORS
<br />BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
<br />INDIRECT, OR CONSEQUENTIAL DAMAGES,
<br />LOSS OF BUSINESS, LOSS OF PROFITS,
<br />LOSS OF GOODWILL, OR TORTIOUS
<br />CONDUCT RELATING TO, CAUSED BY, OR
<br />ARISING OUT OF ANY BREACH OF ITS
<br />OBLIGATIONS OR CUSTOMER'S USE OR
<br />INABILITY TO USE THE APPLICATION(S),
<br />EVEN IF CUSTOMER HAS BEEN ADVISED OF
<br />THE POSSIBILITY OF SUCH LOSS OR
<br />DAMAGES. IN NO EVENT SHALL THE
<br />AGGREGATE LIABILITY OF EP AND ITS
<br />LICENSORS ARISING OUT OF THIS
<br />AGREEMENT EXCEED THE TOTAL AMOUNTS
<br />ACTUALLY PAID BY AND/OR DUE FROM
<br />CUSTOMER IN THE TWELVE (12) MONTH
<br />PERIOD IMMEDIATELY PRECEDING THE
<br />EVENT GIVING RISE TO ANY CLAIM BY
<br />CUSTOMER AGAINST EP.
<br />
<br />IF ANY APPLICABLE AUTHORITY HOLDS ANY
<br />PORTION OF THIS SECTION TO BE
<br />UNENFORCEABLE, THEN THE PARTIES’
<br />LIABILITY WILL BE LIMITED TO THE FULLEST
<br />POSSIBLE EXTENT PERMITTED BY
<br />APPLICABLE LAW. CUSTOMER WILL
<br />INDEMNIFY, DEFEND AND HOLD HARMLESS
<br />EP FOR ANY LOSS, DAMAGE OR COST IN
<br />CONNECTION WITH ANY CLAIM OR ACTION
<br />WHICH MAY BE BROUGHT BY ANY THIRD
<br />PARTY AGAINST EP RELATING TO ANY
<br />BREACH OF THIS AGREEMENT BY
<br />CUSTOMER.
<br />
<br />DocuSign Envelope ID: 20294076-4C52-4D16-AEB5-11525F0852A4
|