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.
11. 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.
12. 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.
This Agreement may not be assigned by the Client without the prior written consent of Boiler Bay. Boiler Bay may assign this Agreement without the Client’s consent.
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
15. ENTIRE AGREEMENT; NO WAIVER; AMENDMENT