|
InfoSend MSA
<br />Rev. 7.31.2020 5 | P a g e
<br />or employees. While the outbound services have been
<br />created with the best available tools and practices, they
<br />are dependent on infrastructure that is inherently not fail -
<br />proof, including but not limited to infrastructure such as
<br />United States Postal Service (“USPS”) delivery standards,
<br />software, computer hardware, network services,
<br />telephone and SMS services, and email. Examples of
<br />situations that could cause failure include but are not
<br />limited to: USPS failure to deliver, down phone lines, all
<br />lines busy, equipment failure, email address changes, and
<br />Internet service disruptions. For this reason, while
<br />outbound services are valuable in providing enhanced
<br />communication, they are specifically not designed to be
<br />used as the sole method to deliver critical messages.
<br />Client acknowledges that Client is aware of the potential
<br />hazards associated with relying on an automated
<br />outbound service feature when using InfoSend services.
<br />Client agrees that it is giving up in advance any right to
<br />make any claim against InfoSend, and that Client forever
<br />releases InfoSend from any and all liability caused by (a)
<br />any failed USPS delivery; (b) any failed email delivery; (c)
<br />any failed SMS or call attempts (including excess of calls
<br />over and above network or system capacity), incomplete
<br />calls, or any busy-outs; or (d) any failure to transmit,
<br />obtain or collect data from callers or for human and
<br />machine errors, faulty or erroneous input, inarticulate
<br />caller communication, caller delays or call lengths
<br />exceeding estimated call lengths or omissions, delays and
<br />losses in connection with the Services provided
<br />hereunder. Such release shall include instances where
<br />Client, Client’s employees, or Client’s end user suffer
<br />injury or damage due to the failure of outbound services
<br />to operate, even though InfoSend may know or suspect
<br />what or how extensive those injuries or damages might
<br />be, unless such losses were directly attributable to
<br />InfoSend’s gross negligence or willful misconduct.
<br />
<br />10 Insurance
<br />
<br />10.1 InfoSend’s Insurance Provisions
<br />InfoSend will maintain the following minimum insurance
<br />levels during the Initial Term of this Agreement and any
<br />Renewal Terms:
<br />
<br />• Commercial General Liability coverage in the amount
<br />of $1,000,000.00 per occurrence and $2,000,000.00
<br />in aggregate.
<br />• Automobile Liability Insurance coverage in the
<br />amount $1,000,000.00 per occurrence.
<br />• Umbrella Liability Insurance in the amount of
<br />$5,000,000.00 per occurrence and in aggregate.
<br />• Worker’s Compensation Insurance with at least the
<br />minimum coverage amounts required by law.
<br />• Errors & Omissions Insurance with a $5,000,000.00
<br />coverage limit.
<br />
<br />11. Indemnification & Limitation of Liability
<br />
<br />11.1 Indemnification
<br />InfoSend is a service provider. As such, Client
<br />acknowledges that data processing involves the risk of
<br />human and machine errors and that InfoSend shall not be
<br />liable for any errors, omissions, delays or losses.
<br />
<br />InfoSend will not be responsible for actions, omissions or
<br />delays to Services resulting from incomplete, late or faulty
<br />data and/or instructions transmitted by Client. No
<br />damages shall be assessed against InfoSend when any
<br />delay or breach on InfoSend’s part is caused by failure of
<br />Client to perform Clients’ responsibilities or any other
<br />reason beyond the control of InfoSend, including, without
<br />limitation, (a) failures or limitations on the availability of
<br />third-party telecommunications or other transmission
<br />facilities; (b) Client failure to maintain security or
<br />confidentiality of data or access credentials; (c) violation
<br />of the applicable terms of this Agreement or any
<br />applicable laws, regulations or industry standards.
<br />
<br />11.2 Limitation of Liability
<br />In no event shall InfoSend be liable for indirect, special or
<br />consequential damages even if InfoSend has been advised
<br />of the possibility of such potential claim, loss or damage.
<br />The foregoing limitation of liability and exclusion of
<br />certain damages shall apply regardless of the success or
<br />effectiveness of other remedies.
<br />
<br />12 General
<br />
<br />12.1 Independent Contractor
<br />Client and InfoSend agree and understand that the
<br />relationship between both parties is that of an
<br />independent contractor. No joint venture, partnership,
<br />employment or agency relationship exists between Client
<br />and InfoSend as a result of this Agreement or use of the
<br />Service.
<br />
<br />12.2 Governing Law
<br />This Agreement shall be governed by the substantive laws
<br />of the state of California without regard to the choice or
<br />conflicts of law provisions of any jurisdiction.
<br />
<br />12.3 Amendment of Agreement
|