|
MASTER AGREEMENT
<br />CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR
<br />LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OR FOR INCREASED COST OF OPERATIONS.
<br />(c) THE LIMITATIONS IN THIS SECTION 6.1 SHALL NOT LIMIT CUSTOMER'S RESPONSIBILITY FOR THE PAYMENT OF ALL
<br />PROPERLY DUE CHARGES UNDER THIS AGREEMENT.
<br />6.2 Disclaimer of liability. AT&T WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING T0:
<br />INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, DATA, EQUIPMENT, SERVICES,
<br />CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS, SERVICE LEVELS, DELAYS OR
<br />ANY SERVICE ERROR OR INTERRUPTION, INCLUDING INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY 911
<br />OR OTHER EMERGENCY RESPONSE CALLS OR ANY OTHER CALLS OR TRANSMISSIONS, (EXCEPT FOR CREDITS EXPLICITLY
<br />SET FORTH IN THIS AGREEMENT); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR
<br />THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER'S (OR ITS AFFILIATES', USERS' OR THIRD PARTIES')
<br />APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORKS OR SYSTEMS.
<br />6.3 Disclaimer of Warranties. AT&T MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
<br />SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
<br />PURPOSE, TITLE OR NON-INFRINGEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING BY USAGE OF TRADE OR
<br />BY COURSE OF DEALING. FURTHER, AT&T MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE CALLS OR
<br />OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING CALLS TO 911
<br />OR ANY SIMILAR EMERGENCY RESPONSE NUMBER) AND MAKES NO GUARANTEE REGARDING NETWORK SECURITY, THE
<br />ENCRYPTION EMPLOYED BY ANY SERVICE, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT
<br />TO LOAD BALANCING OR THAT AT&T'S SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF OR
<br />IMPROPER ACCESS TO CUSTOMER'S DATA AND INFORMATION.
<br />6.4 Application and Survival. The disclaimer of warranties and limitations of liability set forth in this Agreement will apply regardless
<br />of the form of action, whether in contract, equity, tort, strict liability or otherwise, of whether damages were foreseeable and of whether a
<br />party was advised of the possibility of such damages and will apply so as to limit the liability of each party and its Affiliates and their
<br />respective employees, directors, subcontractors and suppliers. The limitations of liability and disclaimers set out in this Section 6 will
<br />survive failure of any exclusive remedies provided in this Agreement.
<br />THIRD PARTY CLAIMS
<br />7.1 AT&T's Obligations. AT&T agrees at its expense to defend and either to settle any third-party claim against Customer, its
<br />Affiliates and its and their respective employees and directors or to pay all Damages that a court finally awards against such parties for a
<br />claim alleging that a Service provided to Customer under this Agreement infringes any patent, trademark, copyright or trade secret, but not
<br />where the claimed infringement arises out of or results from: (a) Customer's, its Affiliate's or a User's content; (b) modifications to the
<br />Service by Customer, its Affiliate or a third party, or combinations of the Service with any non-AT&T services or products by Customer or
<br />others; (c) AT&T's adherence to Customers or its Affiliate's written requirements; or (d) use of a Service in violation of this Agreement.
<br />7.2 Customer's Obligations. Customer agrees at its expense to defend and either to settle any third-party claim against AT&T, its
<br />Affiliates and its and their respective employees, directors, subcontractors and suppliers or to pay all Damages that a court f natty awards
<br />against such parties for a claim that: (a) arises out of Customer's, its Affiliate's or a User's access to or use of the Services and the claim is
<br />not the responsibility of AT&T under Section 7.1; (b) alleges that a Service infringes any patent, trademark, copyright or trade secret and
<br />falls within the exceptions in Section 7.1; or (c) alleges a breach by Customer, its Affiliate or a User of a software license agreement
<br />governing software provided in connection with the Services.
<br />7.3 Infringing Services. Whenever AT&T is liable under Section 7.1, AT&T may at its option either procure the right for Customer to
<br />continue using, or may replace or modify, the Service so that it is non-infringing.
<br />7.4 Notice and Cooperation. The party seeking defense or settlement of a third-party claim under this Section 7 will provide notice
<br />to the other party promptly upon learning of any claim for which defense or settlement may be sought, but failure to do so will have no
<br />effect except to the extent the other party is prejudiced by the delay. The party seeking defense or settlement will allow the other party to
<br />control the defense and settlement of the claim and will reasonably cooperate with the defense. The defending party will use counsel
<br />reasonably experienced in the subject matter at issue and will not settle a claim without the written consent of the party being defended,
<br />which consent will not be unreasonably withheld or delayed, except that no consent will be required to settle a claim where relief against
<br />the party being defended is limited to monetary damages that are paid by the defending party under this Section 7.
<br />ua_ver_ii.doc UA VER II 04!14!11
<br />ATB:T and Customer Confidential Information
<br />Page 5 of 8
<br />eCRM ID
<br />
|