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4.3.3. All termination fees must be paid within ten (10)business days of the date of Client's or FirsTech's
<br /> termination notice.
<br /> S. Intellectual Property. FirsTech owns all right,title and interest in the Payment System and any software or other
<br /> intellectual property provided pursuant to a Services Schedule and all patents, patents pending,copyrights,trade
<br /> secrets,trademarks,trade names,service marks and other intellectual property associated with or relating to the
<br /> Payment System or such software or other intellectual property along with all improvements and derivative works in
<br /> such intellectual property(collectively,the"FirsTech Intellectual Property'). Client will not engage in any activities or
<br /> commit any act,directly or indirectly,which may contest,dispute,or otherwise impair such right,title or interest of
<br /> FirsTech therein. Client will neither acquire, nor claim,any right,title,or interest in,to or under the Payment System
<br /> or any FirsTech Intellectual Property,whether through advertising and sale of the Payment System usage or
<br /> otherwise. The parties agree that all use of FirsTech Intellectual Property by Client and Customers is at the express
<br /> consent of FirsTech only,and any such use will be in a manner as to inure at all times to the benefit of FirsTech,and
<br /> may be revoked at any time by FirsTech upon written notice to Client. Upon termination of this Agreement for any
<br /> reason,Client will have no further right to use the FirsTech Intellectual Property and will immediately cease and desist
<br /> use of such FirsTech Intellectual Property.
<br /> 6. Insurance. FirsTech will procure, pay premiums,and at all times during the term of this Agreement, maintain
<br /> reasonable insurance in accordance with industry practices.
<br /> 7. Indemnification.
<br /> 7.1. Client will indemnify,defend and hold harmless FirsTech and FirsTech's officers,directors,employees,and
<br /> agents and their successors and assigns against and from any and all third party losses,liabilities,damages,
<br /> claims,demands,and expenses, including,without limitation,reasonable attorneys'fees("Losses"),whether
<br /> based on contract or tort,but only to the extent that such Losses arise out of the intentional misconduct or
<br /> negligent acts or omissions of Client or its subcontractors,or the officers,directors,employees,agents
<br /> successors and assigns of any of them.
<br /> 7.2. If a claim is made against FirsTech for which Client(the"Indemnifying Party")is obligated to indemnify FirsTech,
<br /> and if FirsTech intends to seek indemnity with respect to such claim, FirsTech will promptly notify Client in
<br /> writing of such claim. Client will have twenty(20)days after receipt of the above-mentioned notice to notify
<br /> FirsTech in writing of its intent to undertake,conduct and control,through counsel of Clients own choosing
<br /> (subject to the consent of FirsTech,such consent not to be unreasonably withheld)and at Client's expense,the
<br /> settlement or defense,or both,of such claim,and FirsTech will cooperate with Client in connection with such
<br /> efforts; provided that: (a)Client will cause such counsel to consult with FirsTech on all major decisions related
<br /> to such claim,(b)Client will permit FirsTech to participate in such settlement or defense through counsel chosen
<br /> by FirsTech,provided that the fees and expenses of any such counsel so chosen by FirsTech will be borne by
<br /> FirsTech,and(c)Client will promptly reimburse FirsTech for the full amount of any loss resulting from such claim
<br /> and all related expense incurred by FirsTech. If Client does not notify FirsTech within twenty(20)days after
<br /> receipt of FirsTech'notice of a claim of indemnity under this Agreement that Client elects to undertake the
<br /> defense of such claim, FirsTech will have the right to contest,settle or compromise the claim in the exercise of
<br /> FirsTech's exclusive discretion,which will be at the sole expense of Client. Client will not,without the prior
<br /> written consent of FirsTech,settle or compromise,or permit a default judgment or consent to entry of any
<br /> judgment with respect to,any such claim, unless such settlement or compromise or judgment is solely for the
<br /> payment of money and includes a full, unconditional release of FirsTech with respect to all liability related to
<br /> such claim.
<br /> S. Limited Warranty.
<br /> 8.1. FirsTech will perform the Services in a professional and workmanlike manner using qualified employees. If
<br /> FirsTech breaches this warranty,Clients sole remedy and FirsTech's sole obligation will be to reperform
<br /> the applicable Services to the extent that the Services can be reperformed and otherwise to establish
<br /> reasonable corrections to limit future breaches.
<br /> 8.2. EXCEPT FOR THE FOREGOING WARRANTY, FIRSTECH MAKES NO WARRANTIES,EXPRESS OR IMPLIED,
<br /> WITH RESPECT TO THIS AGREEMENT,THE PAYMENT SYSTEM OR THE SERVICES,INCLUDING, BUT NOT
<br /> LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
<br /> ACCURRACY, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM
<br /> A COURSE OF DEALING OR USAGE OF TRADE,ALL OF WHICH ARE HEREBY DISCLAIMED.
<br /> 9. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF USE, REVENUE OR PROFIT
<br /> OR ANY SPECIAL, EXEMPLARY,INDIRECT,INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHETHER IN
<br /> CONTRACT,WARRANTY,TORT, NEGLIGENCE,STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH
<br /> DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
<br /> SUCH DAMAGES. IN NO EVENT WILL FIRSTECH'S AGGREGATE LIABILITY HEREUNDER EXCEED THE AMOUNT OF
<br /> SERVICE FEES PAID TO FIRSTECH IN THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE
<br /> APPLICABLE CLAIM.
<br /> Master Services Agreement -5-
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