ENTIRE AGREEMENT; AMENDMENTS. These standard terms and conditions constitute the entire agreement between “Customer” and Feedback Systems, Inc. (FSI) about the services provided to Customer and supersede all previous negotiations and representations between the parties, whether oral or in writing. No modification of this Agreement shall be binding unless in writing and signed by both parties.
SEVERABILITY. If any section, subsection, sentence or clause of the terms and conditions shall be adjudged illegal, invalid or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity or enforceability of these terms and conditions as a whole or of any section, subsection, sentence or clause hereof not so adjudged.
NOTICES. All notices and written communication hereunder shall be deemed given if delivered personally or mailed by first class mail, postage pre-paid, to the address of the party.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE AGGREGATE FINANCIAL RESPONSIBILITY OF FSI FOR ANY FAILURE OF PERFORMANCE BY FSI UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID TO FSI FROM CUSTOMER HEREUNDER. NEITHER PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR ANY OTHER CAUSE OF ACTION RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
DISCLAIMER OF WARRANTIES. THE PRODUCTS AND SERVICES SOLD HEREUNDER ARE SOLD “AS IS” AND “WHERE IS”. FSI MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE.
NON-EXCLUSIVITY. FSI may engage its services with any other individual or company that competes with CUSTOMER or offers services similar to those offered by CUSTOMER, and any such engagement shall not be considered a breach of this Agreement.
MISCELLANEOUS. This Agreement shall be interpreted and enforced according to the Laws of the State of California. In the event of breach of this Agreement, the prevailing party in any subsequent action shall be entitled to recover its fees and costs, including attorneys’ fees. All disputes arising from or related to this Agreement shall be litigated in the County of Los Angeles. This Agreement shall not be deemed to constitute or create a joint venture or partnership between or among FSI and any other party or parties, nor shall this Agreement authorize or permit any other party to bind FSI in any way.
SURVIVAL. The parties’ obligations under Section 4, 5, 6 and 7 of these terms and conditions shall survive any termination or expiration of the Agreement.