7.1 Infringement Indemnity. Blue Ridge shall indemnify, defend and hold harmless Customer and Customer’s directors, officers, employees, suppliers, consultants, contractors and agents from and against any claims by third parties caused by, arising out of, or relating to, the violation or alleged violation of any valid third-party copyright, patent rights, trade secrets, or trademark by the Subscription Services (other than liability arising from the fault of Customer or its End Users or agents) (“Infringement Claim”); provided Customer notifies Blue Ridge in writing within twenty (20) days of becoming aware of any such claim or violation and Customer fully cooperates with Blue Ridge in the defense of such claim or violation. Delay in notice by Customer will excuse Blue Ridge from performing under this indemnity only to the extent the delayed notice caused damage to Blue Ridge. Blue Ridge shall conduct the defense and any settlement negotiations in any such third-party action arising as described herein and Blue Ridge shall have sole control of defenses and settlements, except that Blue Ridge shall not enter into a settlement that admits the liability of Customer beyond the sums paid by Blue Ridge or requires Customer to pay any sums. This indemnification is limited to the Subscription Services in the form delivered to the Customer and does not cover claims: (i) that arise because of modifications or any other uses not contemplated in the Documentation whether or not expressly authorized by Blue Ridge; (ii) that arise because of use of the Subscription Services in combination with software, procedures or other items not provided by Blue Ridge; or (iii) that would not exist but for such modifications, other uses or combinations described in (i) and (ii) above. If a third-party Infringement Claim causes Customer’s quiet enjoyment and use of the Subscription Service to be stopped, Blue Ridge shall be entitled, at Blue Ridge’s own expense and option, as the sole remedy of Customer, to either: (i) replace the Subscription Services, or part thereof, with a functionally equivalent and non-infringing service; (ii) modify the Subscription Services so it becomes non-infringing and performs in a substantially similar manner; (iii) obtain a license for the Customer to continue use of the Subscription Services; or (iv) terminate the Term and refund to Customer the remaining portion of the subscription fee attributable to the period after termination. The obligations of Blue Ridge set forth above are Blue Ridge’s sole obligations and Customer’s sole remedy with respect to all liability arising from the violation or alleged violation of any third-party trade secrets, proprietary information, trademark, copyright, or patent rights by the Subscription Services.
7.2 Warranties; Disclaimers and Limitation of Liability Blue Ridge represents and warrants that: (a) the Subscription Services shall be provided according to the uptime objectives set forth in the Support Services and that any software including in the Subscription Services shall materially conform with its documentation; and (b) the professional services will be provided by competent, qualified individuals in a workmanlike manner. EXCEPT AS EXPRESSLY SET FORTH IN BLUE RIDGE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGMENT OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER AND LICENSED AFFILIATES ACKNOWLEDGE AND AGREE THAT CUSTOMER AND LICENSED AFFILIATES ARE SOLELY RESPONSIBLE FOR DETERMINING IF THE SUBSCRIPTION SERVICES WILL ACHIEVE CUSTOMER’S AND LICENSED AFFILIATES’ INTENDED RESULTS AND/OR SATISFY ITS BUSINESS REQUIREMENTS AND NEEDS AND THAT BLUE RIDGE MAKES NO REPRESENTATION OR WARRANTY THAT THE SUBSCIPTION SERVICES WILL ACHIEVE SUCH INTENDED RESULTS OR SATISFY SUCH BUSINESS REQUIREMENTS OR NEEDS. THE ACCURACY OF RESULTS OR RECOMMENDATIONS OF THE SUBSCRIPTION SERVICES ARE DEPENDENT UPON THE DATA PROVIDED BY CUSTOMER AND LICENSED AFFILIATES. SUBJECT TO THE WARRANTIES SET FORTH IN THIS AGREEMENT, BLUE RIDGE SHALL NOT BE LIABLE FOR THE ACCURACY OR THE RESULTS OF THE SUBSCRIPTION SERVICES. CUSTOMER AGREES THAT ITS DECISION TO LICENSE THE SUBSCRIPTION SERVICES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, OR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY BLUE RIDGE REGARDING FUTURE FUNCTIONALITY OR FEATURES.
EXCLUDING LIABILITY FOR VIOLATIONS OF SECTIONS 1.2, 3, 4.1, 4.4, and 7.1 OF THIS AGREEMENT, THE TOTAL LIABILITY OF EACH PARTY FOR TORT, CONTRACT AND OTHER DAMAGES SHALL NOT EXCEED THE SERVICE FEES PAID BY CUSTOMER FOR THE PARTICULAR ANNUAL SUBSCRIPTION PERIOD IN WHICH THE EVENTS GIVING RISE TO THE CLAIM OCCURRED. EXCLUDING LIABILITY FOR VIOLATIONS OF SECTIONS 1.2, 3, 4.1, 4.4, and 7.1 OF THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER. CUSTOMER’S REMEDIES UNDER THIS AGREEMENT OR AT LAW OR IN EQUITY ARE LIMITED TO THOSE SET FORTH IN THIS AGREEMENT. BLUE RIDGE SHALL NOT BE LIABLE FOR ANY DAMAGES THAT COULD HAVE BEEN AVOIDED IF CUSTOMER HAD MAINTAINED APPROPRIATE PROCEDURES.
7.3 Applicable Law and Jurisdiction. THIS AGREEMENT, ITS ADMINISTRATION AND PERFORMANCE, AND THE RIGHTS, OBLIGATIONS, LIABILITIES, AND RESPONSIBILITIES OF THE PARTIES HERETO, SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF GEORGIA, UNITED STATES, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES. Any suit, action or proceeding against Blue Ridge or Customer and Licensed Affiliates with respect to this Agreement shall be brought in any competent court located in the State of Georgia, United States, and Blue Ridge and Customer and Licensed Affiliates hereby consent and submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. Blue Ridge and Customer and Licensed Affiliates hereby further irrevocably consent and submit to service of process in any suit, action or proceeding in said court by the receipt thereof by the other party by registered or certified mail, postage prepaid, return receipt requested. The rights and obligations of the parties under this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. English is the language of this Agreement. The English language version of this Agreement executed by the parties shall govern and control all interpretations, enforcement and application of this Agreement even if translations have been made by either party. Such translations shall not affect the interpretation or meaning of this Agreement and they are not a part of this Agreement notwithstanding anything to the contrary.
7.4 Entire Agreement. This Agreement including the attached Schedules and fully signed Orders constitute the entire agreement between the parties with regard to the subject matter hereof, and supersede and cancel any and all prior and contemporaneous oral or written statements, proposals, order forms, or agreements relating to the subject matter hereof. In the event of a conflict between this Agreement and an Order or a Statement of Work, this Agreement will control, unless expressly stated to the contrary in this Agreement or the specific Order or Statement of Work.
7.5 No Waiver. The failure of either party to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights.
7.6 Assignment. Neither this Agreement nor any interest hereunder shall be assigned or transferred by Customer or Licensed Affiliates, except pursuant to the sale of all or substantially all of the stock or assets of the Customer, without the prior written consent of Blue Ridge. Blue Ridge may assign and delegate its rights and obligations under this Agreement without obtaining the consent of Customer as long as the assignee assumes the obligations of Blue Ridge under this Agreement and the assignee has full rights to operate and license the Subscription Services to Customer as provided under this Agreement. This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives, and assigns of the parties hereto.
7.7 Severability. The provisions of this Agreement are separate and independent covenants, and the invalidity or unenforceability of one or more of these provisions or covenants shall not affect the validity or enforceability of the remaining provisions or of the other covenants of this Agreement.
7.8 Notices. All notices under this Agreement shall be in writing on paper and shall be deemed to be effectively given upon receipt, or refusal, or when delivered by certified mail, return receipt requested, personal delivery, messenger delivery, overnight courier, or equivalent means of delivery postage prepaid addressed to the addresses set forth in the applicable Order or Statement of Work.
7.9 Marketing. With Customer permission, Customer agrees to participate in the following marketing activities: (1) joint press releases announcing the selection of Blue Ridge, successful results due to Blue Ridge’s solutions and other newsworthy events; (2) case studies on successful results due to Blue Ridge’s solutions; (3) reference program participation; (4) analyst reviews and interviews. Customer grants Blue Ridge permission and a limited license to use Customer’s logo(s) to identify Customer as Blue Ridge’s Customer on Blue Ridge’s website and in sales presentations.
7.10 Headings. The section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.
7.11 Survival. Upon termination of the Term or this Agreement all provisions of Sections 2, 3, 4, 5, 6, and 7 shall survive termination and continue in full force and effect.
7.12 Force Majeure. Neither party shall be liable for any delay or failure in performance of this Agreement if caused by an act of nature or any commercially reasonable factor beyond that party’s control, however this does not excuse any non-payment. In any such event, the date for the performance by either party shall be deferred for a period of time equal to the time lost by reason of such act of nature or other factor.
7.13 Non-Solicit. During the Term of this Agreement and for a period of one (1) year following its termination or expiration, Customer and Blue Ridge agree that each party and their affiliates shall not solicit to hire, hire or cause to hire any employees of the other party with whom they have had communication or contact as a result of services or products provided under this Agreement, without the express written permission signed on paper or acceptable electronic communication by an authorized representative of the other party. Customer and Blue Ridge shall be entitled, in addition to any other remedies at law or in equity, to obtain injunctive relief. This provision does not prohibit offers or hires that arise from general solicitations by a party advertising employment openings.