BOILER BAY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. BOILER BAY IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO OR TECHNICAL SUPPORT OF THE SOFTWARE. BOILER BAY DOES NOT WARRANT THAT THE SOFTWARE OR ANY PART THEREOF WILL MEET THE CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. SUPPORT FOR THE TERM OF THE LICENSE WILL BE PROVIDED AT BOILER BAY’S SOLE DISCRETION AND MAY BE CONDITIONED UPON PAYMENT OF FEES.
8. NO LIABILITY FOR DAMAGES
IN NO EVENT SHALL BOILER BAY OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, DIRECT, INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING FAULT, NEGLIGENCE AND THE FAILURE OF THE ESSENTIAL PURPOSE. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO THE CLIENT.
The Client shall defend, indemnify and hold harmless Boiler Bay, its Affiliates, and their licensors, officers, directors, agents and employees from any liability, loss damage, cost or expense (including reasonable attorney’s fees) arising out of any act or omission by the Client in connection with its use of the Software.
10. GOVERNING LAW AND JURISDICTION
i. This Agreement and all rights and obligations hereunder, including but not limited to matters of construction, validity and performance, shall be governed by and construed in accordance with the laws of the State of California.
ii. Each of the parties hereto agrees that venue for any legal action arising out of this Agreement shall lie exclusively with the State courts located in Santa Cruz County, CA.
11. PREVAILING AGREEMENT
In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any license agreements appearing with or in the software products comprising the Software, this Agreement shall prevail.