6.4.
6.5.
THE SERVICES AND CONTENT DELIVERED HEREUNDER ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE, FOR INSURANCE UNDERWRITING, OR FOR HIGH RISK ACTIVITIES, INCLUDING BUT NOT LIMITED TO, CRITICAL HEALTH AND SAFETY SITUATIONS, ONLINE CONTROL EQUIPMENT, HAZARDOUS ENVIRONMENTS THAT REQUIRE FAIL SAFE PERFORMANCE, SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, OR COMMUNICATION SYSTEMS, EMERGENCY RESPONSE, TERRORISM PREVENTION OR RESPONSE, LIFE SUPPORT, OR WEAPONS SYSTEMS. USGEOCODER/ONLINE IMAGE SPECIFICALLY DISCLAIMS ANY WARRANTY OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.
7.1.
In no event shall USgeocoder/Online Image or their third party licensors, employees, or agents be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to, damages for loss of profits, revenue, goodwill, use, data, electronically transmitted orders, or other economic advantage (even if USgeocoder/Online Image has been advised of the possibility of such damages), however caused and regardless of the theory of liability, whether in contract, tort (including negligence), breach of warranty, or otherwise, arising out of or related to the following:
(a)
the use of, or the inability to use, the services;
(b)
the cost of procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained or messages received or transactions entered into through or from the services;
(c)
unauthorized access to, or alteration of, subscriber's transmissions or data;
(d)
statements or conduct of any third party on the services; or
(e)
any other matter relating to the services including content subscriber may download, use, modify, or distribute from USgeocoder/Online Image's web sites.
7.2.
Subscriber has sole responsibility for adequate protection and backup of any data and/or any equipment used in connection with the services. Subscriber waives any and all claims against USgeocoder/Online Image for lost data, rerun time, inaccurate output, work delays, or lost profits resulting from the use of the services.
7.3.
The limitations of liability and disclaimers set forth in this Agreement apply regardless of whether Subscriber has accepted any services, software, data, or documents delivered by USgeocoder/Online Image. Subscriber agrees that USgeocoder/Online Image sets its prices and enters into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of bargain between the parties.
SECTION 8. INDEMNITY.
8.1.
Subscriber shall indemnify and hold USgeocoder/online image harmless from, and covenants not to sue USgeocoder/online image, for, any and all claims based on using the services as integrated as part of subscriber's value added application.
8.2.
USgeocoder/Online Image is committed to respecting others' intellectual property rights and asks that Subscriber do the same. Subscriber agrees to defend, indemnify, and hold harmless USgeocoder/Online Image and its subsidiaries, affiliates, officers, agents, cobranders, alliance members, or other partners, employees, or agents from any claim or demand, including attorney's fees, made by any third party due to, or arising out of, Subscriber's use of the services including any use by Subscriber's employees or agents, Subscriber's connection to the services, Subscriber's violation of the terms and conditions of this Agreement, or Subscriber's violation of any rights of a third party. USgeocoder/Online Image may, in its sole discretion and without notice, terminate the accounts or access rights of Subscriber's who misappropriate, infringe, or otherwise violate a third party's intellectual property rights.
SECTION 9. PRIVACY POLICY.
USgeocoder/Online Image respects Subscriber's desire for privacy. By using the USgeocoder/Online Image web site and the services, Subscriber consents to the terms of this Privacy Policy. Subscriber further consents to the processing of Subscriber's registration information by any data and/or service provider, and, if applicable, by any authorized distributor responsible for providing technical support to Subscriber. If USgeocoder/Online Image decides to change that policy, it will post the revised policy prominently on its web site or otherwise bring it to Subscriber's attention.
SECTION 10. GENERAL TERMS AND CONDITIONS.
10.1.
The parties intend this Agreement to be an integration constituting the entire agreement between them. This Agreement governs Subscriber's use of the services in all respects, superseding any prior agreements, including, but not limited to, any prior versions of the Agreement. Subscriber may be subject to additional specific terms and conditions that may apply when Subscriber accesses and uses other services, USgeocoder/Online Image software, third party content, or third party software. Subscriber may not assign or otherwise transfer the terms and conditions nor any rights granted herein. Sections 1, 5, 6, 7, 8, and 10 shall survive termination of this Agreement.
10.2.
This Agreement is deemed to be entered into in the State of California, County of Santa Clara and shall be governed by, and construed and enforced according to, the laws of that state, without regard to conflict of laws principles. Personal and subject matter jurisdiction are exclusively in California. Exclusive venue is Santa Clara County. The parties specifically disclaim and waive any and all rights under the U.N. Convention on Contracts for the International Sale of Goods.
10.3.
The services are subject to the U.S. Export Administration Laws and Regulations. Diversion of such services contrary to U.S. law is prohibited. None of the services, software, data, or information, or any direct product therefrom, are being, nor will be, acquired for shipping, transferring, or re-exporting, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will they be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. government. Subscriber certifies that Subscriber is not on the U.S. Department of Commerce's Denied Persons List or affiliated lists or in the U.S. Department of Treasury's Specially Designated Nationals List. Subscriber will strictly comply with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Subscriber will comply with all import laws, restrictions, and regulations applicable to the location where the services are received by the Subscriber.
10.4.
Subscriber shall maintain at Subscriber's principal place of business complete and accurate business records of the transactions for services acquired pursuant to this Agreement. USgeocoder/Online Image shall have the right to annually inspect such records at its expense and upon reasonable notice to Subscriber and provided such inspection is reasonable in scope and is non disruptive of Subscriber's operations. If an audit reveals that Subscriber has underpaid any subscription or transaction fees to either USgeocoder/Online Image or to its third party supplier for Subscriber's use of the services in excess of ten percent (10%), then Subscriber shall pay USgeocoder/Online Image's reasonable costs of conducting the audit, in addition to the underpaid amount.
10.5.
Any breach of this Agreement will result in irreparable harm to USgeocoder/Online Image or its third party licensors for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, USgeocoder/Online Image shall have the right to a temporary restraining order, preliminary and permanent injunctions, specific performance, and other equitable relief in any court of competent jurisdiction to prevent violation of this Agreement and without the requirement of posting a bond or undertaking or proving injury as a condition for such relief.
10.6.
Any failure of USgeocoder/Online Image to exercise or enforce any term of this Agreement does not constitute a waiver of that term, or of any other term. If a court of competent jurisdiction finds any term of this Agreement to be invalid, that term shall be severed and the remaining terms remain in full force and effect.
10.7.
The parties waive the protections of any and all statutes of limitation and agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, or related to the use of, the services or the terms and conditions of this Subscription Agreement must be filed WITHIN ONE (1) YEAR after such claim or cause of action accrued or be forever barred.
10.8.
Any and all breaches and controversies arising under this Agreement shall be adjudicated exclusively by binding arbitration in Santa Clara County, California under the statutes and rules of California governing such arbitrations. The parties waive any and all right to have any breach or controversy arising under this Agreement adjudicated by a court of law, except as to the filing as a judgment of any arbitrator's award and the enforcement of such judgment.
10.9.
Fees quoted to Subscriber are exclusive of any and all applicable taxes or fees including, but not limited to, sales tax, use tax, value added tax (VAT), customs, duties, or tariffs, and shipping and handling charges.
