of such breach or default and in addition to any other available
remedies at law or in equity, Company may withhold from any Fees due to Content
Provider the amount of any such costs and expenses not immediately repaid by
Content Provider upon receipt of Company's demand for such payment.
D.
EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER COMPANY NOR ITS AFFILIATES
OR PARTNERS MAKE ANY WARRANTY OR REPRESENTATION IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. IN ADDITION TO
THE AFOREGOING DISCLAIMER CONTENT PROVIDER RXPRESSLY ACKNOWLEDGES AND AGREES
THAT THE MEDIAZONE SERVICES ARE PROVIDED ON AN "AS IS" BASIS ONLY AND NEITHER
COMPANY NOR ANY OF ITS AFFILIATES AND/OR PARTNERS MAKES ANY REPRESENTATION OR
GIVES ANY WARRANTY THAT SUCH SERVICES (INCLUDING ANY THIRD PARTY SOFTWARE WHICH
IS USED BY THE MEDIAZONE SERVICES FOR CERTAIN FUNCTIONS INCLUDING BUT NOT
LIMITED TO FUNCTIONS SUCH AS ENCODING AND THE APPLICATION OF SECURITY AND DRM
FUNCTIONALITY AND PROTECTIONS) WILL BE ERROR FREE, WILL ACCOMPLISH THE SPECIFIED
INTENT OR THAT THEY WILL PERFORM IN ACCORDANCE WITH ANY PARTICULAR LEVEL OR
STANDARD AS APPLICABLE. NEITHER COMPANY NOR ITS AFFILIATES OR PARTNERS WILL BE
LIABLE TO CONTENT PROVIDER FOR ANY FAILURE OF THE MEDIAZONE SERVICES AND/OR SUCH
THIRD PARTY SOFTWARE OR FOR ANY UNAUTHORIZED ACCESS TO COPYING OR DOWNLOADING OF
THE CONTENT WHICH OCCURS WITHOUT THE KNOWLEDGE AND/OR CONSENT OF COMPANY AND
CONTENT PROVIDER CONTENT PROVIDER ACKNOWLEDGES FURTHER THAT THE ENTIRE RISK
ARISING OUT OF THE USE OF THE MEDIAZONE SERVICES AND THE CLIENT APPLICATION
REMAINS WITH CONTENT PROVIDER, AND THAT COMPANY MAKES NO REPRESENTATIONS OR
WARRANTIES IN RESPECT OF ANY MATTER IN CONNECTION WITH THE PERFORMANCE OF ANY
ACT OR FAILURE TO ACT BY ANY SYNDICATION
8
PARTNER AND COMPANY ASSUMES NO LIABLITY FOR THE ACTS AND OMISSIONS OF ITS
SYNDICATION PARTNERS.
E.
IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES,
SHAREHOLDERS OR AGENTS BE LIABLE TO CONTENT PROVIDER OR TO ANY THIRD PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR BUSINESS
INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO COMPANY'S PERFORMANCE
HEREUNDER, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN
ADDITION IN NO EVENT SHALL COMPANY'S LIABILITY TO CONTENT PROVIDER AND/OR TO ANY
THIRD PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY
RECEIVED BY COMPANY FROM CONTENT PROVIDER HEREUNDER.
11. Indemnification.
A.
Content Provider shall defend, indemnify and hold harmless Company, its
parent, affiliated companies and partners (including syndication partners) and
their respective officers, directors, employees and agents and the End Users
from and against any and all liabilities, damages costs and fees (including
reasonable attorney's fees) for any third party claims or actions arising out of
or relating to. (i) any breach of its representations and warranties made
hereunder including without limitation breach of the warranties