Service Provider uses delivery services provided by government and private post offices, express couriers, or other vendors in transporting Client Customer Orders. Client acknowledges that these post offices and any such other vendor is not an agent, strategic partner, or subcontractor of Service Provider, and, provided that Service Provider is reasonably diligent in its selection of any such private post offices, express couriers, or other vendors, Service Provider will not be responsible or liable for any transportation services provided by any such other vendor. Client further acknowledges that Service Provider will not be responsible or liable for hardware, software, or other items, or any services provided by any entities other than Service Provider and Service Provider’s agents, strategic partners, and subcontractors.

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Indemnification​

• Client Indemnification: The client shall indemnify, defend and hold harmless Service Provider and its affiliated and controlling entities, and the directors, employees, officers, agents, subcontractors, licensors and suppliers of each of them from and against all third party (including Client's Customers) liabilities, claims, suits, demands, actions, fines, damages, losses, costs and expenses (including reasonable attorneys' fees) (i) for injury to or death of any person or damage to or loss of improvements to real property or tangible personal property to the extent caused by or otherwise resulting from Client’s negligent acts or omissions or willful misconduct except to the extent caused by Service Provider and (ii) arising out of or in connection with the design, manufacture, packaging, marketing, use, storage, transportation or sale of the Goods or Client's instructions regarding such Goods. Service Provider shall have no liability or indemnification obligation under this Agreement arising out of or in connection with the Goods.

• Service Provider Indemnification: The Service Provider shall indemnify, defend and hold harmless Client and its affiliated and controlling entities, and the directors, employees, officers, agents, subcontractors, licensors, and suppliers of each of them from and against all third parties (including Client's Customers) liabilities, claims, suits, demands, actions, fines, damages, losses, costs and expenses (including reasonable attorneys' fees) for injury to or death of any person or damage to or loss of improvements to real property or tangible personal property to the extent caused by or otherwise resulting from Service Provider’s negligent acts or omissions or willful misconduct except to the extent caused by Client.

 

LIMITATIONS OF WARRANTIES.  TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICE PROVIDER MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ACCURACY WITH RESPECT TO THE SERVICES OR SERVICE PROVIDER’S SYSTEMS, AS WELL AS ANY WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, USAGE OR TRADE PRACTICE.  THE SERVICE PROVIDER DOES NOT REPRESENT THAT THE OPERATION OR CLIENT’S USE OF THE SERVICE PROVIDER’S SYSTEMS WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT IT IS NOT SUSCEPTIBLE TO INTRUSION, ATTACK, OR COMPUTER VIRUS INFECTION.

 

LIMITATION ON LIABILITY. THE SERVICE PROVIDER AND ITS AFFILIATES TOTAL LIABILITY TO THE CLIENT OR ANY THIRD PARTY RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, MISREPRESENTATION OR OTHER LEGAL OR EQUITABLE GROUNDS, SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO SERVICE PROVIDER (OR THE APPLICABLE AFFILIATE) UNDER THE APPLICABLE SERVICES ORDER FOR THE AFFECTED PRODUCT OR SERVICE OVER THE TWELVE MONTHS’ PRIOR TO THE EVENT(S) GIVING RISE TO ANY SUCH CLAIM.  SUCH LIMITATION EXPRESSLY EXCLUDES AND SHALL NOT APPLY TO CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR THE INTENTIONAL MISUSE OR DISCLOSURE OF THE CLIENT’S CONFIDENTIAL INFORMATION AND SHALL NOT CONSTITUTE A LIMITATION ON LOSSES CONSTITUTING OR ARISING FROM THIRD-PARTY INDEMNIFICATION CLAIMS.