GENERAL TERMS AND CONDITIONS

1. CONFIDENTIAL INFORMATION
(a) “Confidential Information” includes all information identified by a disclosing party as proprietary and confidential, which Confidential Information shall remain the sole property of the disclosing party unless the ownership of such Confidential Information is otherwise expressly set forth in this Agreement. Items will not be considered Confidential Information if: (a) available to public other than by a breach of an agreement by the recipient; (b) rightfully received from a third party not in breach of any obligation of any confidentiality; (c) independently developed by one party without access to the Confidential Information of the other; or (d) rightly known to the recipient at the time of disclosure as verified by its written records.
(b) Each party agrees that it shall not use for any purpose or disclose to any third party any Confidential Information of the other party without the express written consent of the other party. Each party agrees to safeguard the Confidential Information of the other party against use or disclosure other than as authorized by or pursuant to this Agreement through measures, and exercising a degree of care, which are at least as protective as those Veraciti or Customer, as the case may be, exercises in safeguarding the confidentiality of its own proprietary information, but no less than a reasonable degree of care under the circumstances. Each party shall permit access to the Confidential Information of the other party only to those individuals (a) who have entered into a written nondisclosure agreement with the other party on terms equally as restrictive as those set forth herein, and (b) who require access in the performance of their duties to the other party in connection with the other party’s rights under this Agreement.
(c) Each party acknowledges that the wrongful use or disclosure of Confidential Information of the other party may result in irreparable harm for which there will be no adequate remedy at law. In the event of a breach by the other party or any of its officers, employees or agents of its or their obligations under this Section, the non-breaching party may immediately terminate this Agreement without liability to the other party, and may bring an appropriate legal action to enjoin such breach, and shall be entitled to recover from the breaching party reasonable legal fees and costs in addition to other appropriate relief.
2. DISCLAIMER OF WARRANTIES
THE SERVICES (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, VERACITI MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDNG, BUT NOT LIMITED TO, VERACITI’S NEGLIGENCE, IT BEING ACKNOWLEDGED BY CUSTOMER THAT VERACITI MAKES NO REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED THROUGH THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES.
3. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL VERACITI, ITS OFFICERS, AGENTS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES HEREUNDER BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. VERACITI, ITS OFFICERS, AGENTS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES HEREUNDER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OR DAMAGES THAT RESULT OR HAVE ALLEGED TO HAVE RESULTED FROM THE USE OF OR INABILITY TO USE THE SERVICES; OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATIONS, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO VERACITI’S RECORDS, PROGRAMS OR SERVICES EVEN IF VERACITI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, VERACITI SHALL HAVE NO RESPONSIBILITY WHATSOEVER TO CUSTOMER FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH OR IN CONNECTION WITH ITS SERVICES PROVIDED HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ALL DAMAGES, LOSSES, COSTS OR CAUSES OF ACTIONS FROM ANY AND ALL CLAIMS, WHETHER IN CONTRACT, QUASI-CONTRACT, STATUTORY, TORT INCLUDING NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT WHICH CUSTOMER PAID TO VERACITI DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM AS FEES FOR THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

4. Indemnification
Customer agrees to indemnify and hold harmless Veraciti, and its employees, licensors, independent contractors, providers, and suppliers (the “Affiliates’) from and against any and all claims, liabilities, losses, damages, costs and expenses, (including reasonable attorneys fees) of whatever nature or kind arising out of, related to or in connection with: (1) the use of the Services by the Customer or any user, (2) any breach by Customer of the foregoing representations and warranties, or (3) any acts or omissions of the Customer or authorized users. Customer’s obligation to indemnify Veraciti and Affiliates will survive the expiration or termination of the Contract and the Services by either party for any reason. Customer shall cooperate as fully as reasonably required in the defense of any claim. Veraciti reserves the right, at it own expense, to assume the exclusive defense and control of matter otherwise subject to indemnification by Customer and Customer shall not in any event settle any matter with the written consent of Veraciti.

5. MISCELLANEOUS.
(a) No delay, failure or default in performance of any obligation by either party, excepting all obligations to make payments hereunder, shall constitute a breach of this Agreement to the extent caused by force majeure.
(b) Customer may not assign, transfer, convey, delegate or encumber its duties and obligations hereunder, or any rights or interests hereunder to any third party without the prior written consent of Veraciti. Any assignment in violation of these terms is void.
(c) All communications between the parties with respect to any of the provisions of this Agreement shall be in writing, and shall be sent by personal delivery or by airmail, facsimile transmission or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to Customer as set forth in the preamble of this Agreement, or to Veraciti (attention Legal Department), until such time as either party provides the other not less than ten (10) days' prior written notice of a change of address in accordance with these provisions.
(d) The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the laws of the State of New Jersey; provided, however, that if any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision shall to such extent as it shall be determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement shall otherwise remain in full force. Suit to enforce any provision of this Agreement, or any right, remedy or other matter arising there from, will be brought exclusively in the Superior Court of New Jersey, Morris County. Customer agrees and consents to venue in Morris County, New Jersey and to the in personal jurisdiction of the aforementioned courts. If any dispute arising out of this Agreement is litigated between the parties, the prevailing party shall be entitled to recover its reasonable attorneys’ fees in addition to any other relief to which it may be entitled.
(e) Any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representatives of both parties. The failure of any party to enforce any right it is granted herein, or to require the performance by the other party hereto of any provision of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of the same or any subsequent breach of this Agreement. All provisions of this Agreement which by their own terms take effect upon the termination of this Agreement or by their nature survive termination shall survive such termination.
(f) This Agreement, all attached schedules and all other agreements referred to herein or to be delivered by the parties pursuant hereto, represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and merges all prior discussions between them and supersedes and replaces any and every other agreement or understanding which may have existed between the parties to the extent that any such agreement or understanding relates to providing Services to Customer. Customer hereby acknowledges that it has not reasonably relied on any other representation or statement that is not contained in this Agreement or made by a person or entity other than Veraciti. To the extent, if any, that the terms and conditions of Customer’s orders or other correspondence are inconsistent with this Agreement, this Agreement shall control.

Updated 08/18/2004