1. ACCESS TO AND USE OF THE PRODUCTS
(a) Responsibility for Customer User Activity. Customer agrees that (i) Customer is responsible for all use of the Products, including any additional charges incurred by Customer and/or any individual users to whom it grants permission to access the Products (each, a “Customer End User”).
(c) Limitations. Customer will not, and will not permit Customer End Users to: (i) copy or reproduce in any manner the Products or any portion thereof, except as permitted by the Order Form and/or the Additional Terms; (ii) decompile, disassemble or reverse engineer the Products; (iii) sublicense, lease, rent, distribute, or otherwise transfer the Products; or (iv) use the Products in a service bureau, time sharing, or facilities management arrangement or otherwise use the Products to provide products or services to third parties.
2. ASSIGNMENT. 10 Mile retains the right to assign this Agreement.
3. WARRANTY AND DISCLAIMER
(a) Customer Warranties. Customer represents and warrants that (i) Customer is in compliance, and shall remain in compliance during any Subscription Term, with all applicable local, city, state, federal, national, and international laws, rules and regulations; and (ii) Customer will use the Products solely in accordance with this Agreement, all Additional Terms, and all applicable laws.
(b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 10 MILE PROVIDES THE PRODUCTS “AS IS” AND WITHOUT WARRANTY. 10 MILE DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S OR CUSTOMER END USERS’ REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. 10 MILE HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (1) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE PRODUCTS, AND (2) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
4. CONFIDENTIALITY. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information of the Disclosing Party. The Receiving Party agrees: (i) to hold such Confidential Information in strict confidence; (ii) to use its best efforts to protect such Confidential Information; and (iii) not to use (except in strict performance of its obligations hereunder or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed by law (but only to the extent such disclosure is required) after giving the Disclosing Party as much advance notice of the possibility of such disclosure as reasonably practical so that the Disclosing Party may attempt to stop such disclosure or obtain a protective order concerning such disclosure (except that no notification is required if the Receiving Party is prohibited by law from notifying the Disclosing Party). Confidential Information disclosed to the Receiving Party remains the property of the Disclosing Party. With respect to any Confidential Information that constitutes a Trade Secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. “Confidential Information” means information about its business affairs, goods and services, confidential information, and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”.
5. INDEMNIFICATION. If any action is instituted by a third party against 10 Mile arising out of or related to Customer’s breach of this Agreement or failure to comply with its obligations hereunder, Customer shall indemnify and hold 10 Mile harmless with respect to such action. Customer shall defend such action at its own expense on behalf of 10 Mile and shall pay all damages attributable to such claim which are finally awarded against 10 Mile or paid in settlement of such claim.
6. LIMITATIONS OF LIABILITY. OTHER THAN WITH RESPECT TO A BREACH OF CONFIDENTIALITY, A BREACH BY CUSTOMER OF THE WARRANTIES CONTAINED IN SECTION 3(A), OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 5, (A) IN NO EVENT SHALL 10 MILE BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF 10 MILE (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL 10 MILE BE LIABLE UNDER THIS AGREEMENT OR ANY ORDER FORM ISSUED HEREUNDER FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE TOTAL FEES PAYABLE BY CUSTOMER TO 10 MILE HEREUNDER.
7. TERMINATION. 10 Mile may terminate this Agreement (including any Order Form issued hereunder) effective immediately should Customer fail to make timely payments or otherwise breach this Agreement. Customer may terminate this Agreement upon a material breach of this Agreement by 10 Mile if 10 Mile fails to cure such breach within 15 days after it receives notice thereof.
8. MISCELLANEOUS. All notices under this Agreement shall be given in writing to the other party to the address set forth on the applicable Order Form. The laws of the state of Colorado, United States of America, without giving effect to its principles of conflicts of law, govern all adversarial proceedings arising out of this Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all other agreements, whether written or oral, between the parties. No amendment to this Agreement will be effective unless it is in writing and signed by both parties.