Terms of Service (continued 3)
Effective Date: June 22, 2012
9. Representations and Warranties
9.1 Mutual Representations and Warranties: You represent and warrant to EverTech and EverTech represents and warrants to you:
(i) that you or it has the full power and authority to enter into and perform under these TOS,
(ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and
(iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
9.2 By You: You represent and warrant to EverTech that, in your use of the EverTech Service, you:
(i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and
(ii) will comply with all applicable laws, rules, and regulations.
You further represent and warrant to EverTech that:
(i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content;
(ii) EverTech will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that EverTech incurs in providing the EverTech Service;
(iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and
(iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
10a. Disclaimers and Exclusions
10a.1 DISCLAIMER OF WARRANTIES. EVERTECH PROVIDES THE WEB SITE AND EVERTECH SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. EVERTECH DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, EVERTECH SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. EVERTECH MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
10a.2 EXCLUSION OF DAMAGES. EVERTECH WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE EVERTECH SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10b. Limitation of Liability
LIMITATION OF LIABILITY. IN NO EVENT WILL EVERTECH'S LIABILITY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID TO EVERTECH BY YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY, OR (ii) ONE HUNDRED DOLLARS ($100).
11. Indemnification: You must indemnify and hold EverTech and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS through any act or omission. If you have to indemnify EverTech under this Section, EverTech will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without EverTech's express written permission.