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TERMS OF SERVICE

SERVING WEB DESIGN CUSTOMERS FOR MORE THAN 15 YEARS

Terms of Service

WebAfford.com (WebAfford, we, us or our, is a d/b/a of M Ballew Associates, L.L.C.) is pleased to have the individual or entity (you or your) agreeing to these Terms of Service (ToS) as our Clients. It is our hope that we will meet your expectations, and deliver the products and services set out on your proposal or statement of work. (together, the “Services” and each, individually, a “Service”) as set out in this Agreement. The date that you accept a Quotation, Proposal or Statement of Work for a particular Service is the Effective Date. The initial term and conditions that we agree to provide the Services is also set out in your Proposal or Statement of Work.

RISK-FREE GUARANTEE and REFUND POLICY:  Our Satisfaction Guarantee: If you are not completely satisfied with the homepage design you are presented, we will refund 100% of your money. After the acceptance of the homepage design and before the launch of your website if you wish to discontinue the project you will receive a 50% refund, this only covers part of the cost we incur during the creation of your website.

How We Work

WebAfford makes every effort to work on your project diligently, but the creation of a website also requires the dedication of the client. We expect the client to work diligently to complete their part of the project, completing surveys, providing website content, and responding to designer requests. For us to continue offering such affordable custom websites we must run our projects in a structured and professional manner. This means best efforts from our designers as well as our clients.

Our website Plans are very flexible, but the approach we take is not, we hope our customers understand and appreciate that this is the only way we can work together and both come out winners.  Client will be helped in finding a website example that will be used to build clients website.  If Client has a website they already like designer will evaluate website and inform client as to accuracy of the design match.  We have found this is the best method to match the clients visual requirements.  The designer will use clients color schemes, branding and content, and the look and feel will be of the example site.  Our design technology is so flexible we are able to do this with a high degree of accuracy.  Once a homepage theme is accepted by client, designer will proceed to the build phase of the project where designer will help client made design choices to further personalize the design until a final product is delivered.

Following our project methodology will assure that you receive a great looking website at an affordable price in a reasonably short period of time. If you accept the conditions outlined in the Summary of Policies statement below and the online agreement below the Summary of Policies section, we look forward to serving you.

Authorization:  Customer hereby authorizes WebAfford to access the account Customer is establishing with WebAfford throughout the duration of this agreement for the purpose of design, maintenance and hosting of Customer’s web site.

If Customer has an existing web site which he or she plans to migrate to WebAfford’s hosting services, Customer also authorizes the current web hosting service to provide WebAfford with “read-only permission” for Customer’s web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for migration to WebAfford’s hosting service.  This may require Customer to sign a form or directly notify the legacy hosting service in a manner acceptable to that service company.  Customer also authorizes WebAfford to publicize Customer’s completed web site to Web search engines as explained at http://www.WebAfford.com and its various subdirectories.

Acceptable Use Policies

Unauthorized use of other people’s accounts or computers

WebAfford L.L.C. may take preventive measures, including changing the access password, in the event there is any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include “social engineering” (tricking other people into releasing their passwords), password cracking or security hole scanning.

Any unauthorized use of accounts or computers by an Web Afford, L.L.C. client, whether or not the attacked account or computer belongs to Web Afford L.L.C., will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action.

Web Afford, L.L.C. reserves the right to cancel service at any time. All technical support queries must be made by submitting the request at https://webafford.com/website-design-support/. The client is responsible for maintaining current backups of his/her web pages and database. However, we attempt to perform nightly backups of our servers and will attempt to restore the website in a worse case scenario, however, we do not guarantee the availability or restoration of any lost data.

Web Design Projects

When you register or approve a quotation to have a website designed by WebAfford, you are agreeing to these Terms and Conditions as outlined on this document. You should read this agreement carefully as it will form a legally binding contract between us and you.

PROPOSAL

If not accepted the terms of this Agreement expires 30 days after being submitted to Client. If this Agreement expires, Designer may modify the Agreement and resubmit it to Client.

COMPENSATION

Client agrees to pay Designer the fees listed in the Project Proposal, including all taxes. Pricing in the Project Proposal includes only Designer fees. Any other costs, such as hosting, art licensing or photography, will be billed to Client or as is stated in proposal.

If Client requires Designer to travel, client will pay for expenses including but not limited to: (a) Incidental and out-of-pocket expenses at cost; (b) Mileage reimbursement, other than normal commuting (greater than 60 miles), at IRS Standard Mileage Rate per mile; (c) Travel expenses, other than normal commuting, but including airfare and rental vehicles, with client approval.

PAYMENT

Payment is due when Designer completes each milestone as listed in the Work Plan and Milestones schedule, and Client accepts the Deliverables for that milestone. All invoices for project work on due on receipt, all invoices for monthly services are payable within 15 days of receipt. Invoices shall list any expenses and additional costs as separate items.

LATE PAYMENT

A monthly service late fee of $25, or the maximum allowed by law, is payable on all overdue balances past 30 days. All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.

CHANGES TO PROJECT SCOPE

If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Designer a written Change Order describing the requested changes in detail. Within 5 days of receiving a Change Order, Designer will respond with a statement proposing designers availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Designer will evaluate each Change Order at its standard rate and charges. Client will be billed on a time and materials basis at Designers published hourly rate. Such charges shall be in addition to all other amounts payable under this Agreement, despite any maximum budget, contract price or final price identified. Designer may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes. Client will have 5 days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Designer will not be obligated to perform any services beyond those in the original Agreement.

DELAYS

Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables. Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.

EVALUATION AND ACCEPTANCE

Client shall, within 5 business days after receiving each Deliverable, notify Designer in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. Designer shall, within 5 business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within 5 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after the number of revisions set out in proposal are reached the Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.

 ACCREDITATION AND PROMOTION

Designer shall be entitled to place accreditation, as a hyperlink, in the form, size and location as incorporated by Designer in the Deliverables on each page of the Final Deliverables. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

CONFIDENTIAL INFORMATION

All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

RELATIONSHIP OF THE PARTIES

Designer is an independent contractor. Designer shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

REPRESENTATIONS AND WARRANTIES

Client represents and warrants to Designer that to the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party. Designer represents and warranty to Client that to the best of Designer’s knowledge, the Deliverables will not violate the rights of any third parties.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

INDEMNIFICATION AND LIABILITY

Client shall indemnify Designer from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party due to materials included in Deliverables at the request of the Client.

THE SERVICES AND THE WORK PRODUCT OF DESIGNER ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF DESIGNER. IN NO EVENT SHALL DESIGNER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

TERM AND TERMINATION

This agreement shall begin when client accepts proposal and makes payment and shall continue until all Services are complete and delivered, or until the Agreement is Terminated. Either party may terminate this agreement at any time, on 5 days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 5 day period. Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it. In the event of termination, Client shall pay Designer for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

LICENSE

Designer grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only.

Third Party Software. Client acknowledges that in order for WebAfford to perform design and other services, WebAfford may need to obtain on customers behalf third party services, software or technology (Third Party Software). Client agrees that the rights and licenses with respect to Third Party Software shall be under terms set forth in the pertinent purchase, license or services agreements between Customer and the vendors of such Third Party Software. Client or WebAfford on Client behalf shall execute and comply with appropriate purchase, license, or services agreements with respect to any Third Party Software. Any amounts payable to third party vendors or service providers under such agreements are the sole responsibility of Client and shall be paid on Client behalf and reimbursed to WebAfford. In the event Client decides to longer engage WebAfford hosting and support services, Client will be fully responsible for any costs associated with Third Party Software after leaving WebAffords services platforms. This includes new licenses, license renewals or any change fees. As many license renewals are solely for product support and not needed for upgrades, WebAfford may at its discretion only license certain software for an initial period and chose not to renew the licenses, as it deems it is not required for the continue safe operation of Client website and services

PRELIMINARY WORKS

Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services. All Designer Tools are and shall remain the exclusive property of Designer. Designer grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project.

SUPPORT SERVICES

If Client chooses to engage WebAfford to build a solution on a 3rd party platform such as Shopify or Square Space, then during the first month following expiration of this Agreement, Designer shall provide up to 2 hours of Support Services at no additional cost to Client.  Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies. Requests for additional support will be billed on a time and materials basis at Designers standard rate. The services in the Warranty Period and do not include enhancements to the Project or other services outside the scope of the Proposal.

ALTERATIONS

Alteration of any Deliverable is prohibited without the express permission of Designer. Designer will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.

DISPUTE RESOLUTION

Parties agree to attempt to resolve any dispute by negotiation between the parties. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties. The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.

GENERAL

Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach. All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party. This Agreement shall be governed by the law of Florida. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law. Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect. This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.

Web Page Maintenance

This agreement includes minor non-structural web page maintenance to regular web pages such as updating links and making minor changes to a sentence or paragraph as described in the clients proposal or plan.  Any time spent by Web Afford personnel on maintenance of client’s website in addition to what is stated as included in Client’s Proposal or Plan will be charged at the rates posted on WebAfford’s website.  Designer will inform client of any maintenance costs associated with the request before performing work.

You, as Client, own the website for which you are engaging WebAfford’s services; however, if you choose not to use Web Afford’s services for maintenance/hosting and request that the website referenced in this agreement (including all applicable web pages) be supplied to you for purposes of using another unaffiliated service for website maintenance/hosting, then Web Afford has the right to suspend any maintenance/hosting that was included in your Proposal or Plan and that you have purchased as an addon option with a Plan.

If you, as Client, or an agent designated by you (other than Web Afford), updates your web pages without Web Afford’s support, or outside of Web Afford-supported maintenance plans or products or conditions, the time to repair such web pages is not included as part of the updating time covered by the Plan and will be billed to your credit card on file at the hourly rate published on Web Afford’s web site.

Email Marketing

Is Prohibited From WebAfford Servers and Hosted Email Accounts

This agreement expressly prohibits any form of mass email marketing, bulk email, email blasts, account will be suspended if discovered to be participating in mass email marketing. The reason this is prohibited is that there are industry standards that have to be meet to prevent email servers and website servers from beling blacklisted or blocked from sending email, if our servers are blacklisted or blocked it can cause interface to not only clients services but other WebAfford clients services as well.  There are many 3rd party services that provide this service and clients are expected to select one of these services.  We are very familiar with MailChimp and can setup an account and manage email campaigns on clients behalf.  Here are some other services.

Bulk Email Marketing Tools
  • MailChimp.
  • MailiGen.
  • AWeber.
  • iContact.
  • GetResponse.
  • Campaign Monitor.
  • SendinBlue.
  • Benchmark Email.
Hosting And Support Maintenance

PROVISIONS SPECIFIC TO WEB HOSTING

Abuse of Website Traffic and Storage

Our intention is to provide a large space to serve web documents as part of clients website and email, not an offsite storage area for electronic files. All web pages (html) must be ‘linked’ with files (.gif, .jpeg, .exe, etc.) stored on Affordable Web Design, Inc.’s spaces.

SERVICE UPTIME GUARANTEE 

We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), if requested by client, we will credit client for prorated time down as a percent of hosting charges in that month.

The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable, including, but not limited to, DDOS attacks and IP blacklists; and (5) outages related to the reliability of certain programming environments.

 

Storage and Plan Limits. All Web Hosting plans, including the unlimited plans, are subject to a limit of no more than 250,000 inodes per account. The plans are also limited to no more than 1,000 tables per database and no more than one gigabyte of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to reduce the number of inodes, files and folders, tables or gigabytes (as the case may be), or may be temporarily or permanently suspended, in our sole discretion. All hosting plans are subject to the following limitations: no more than a) 25% of one CPU core; b) 512MB of RAM; c) 100 website connections; d) 100 active processes; e) 1 MB/s disk IO. In the event these limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees.

You acknowledge and agree that inbound UDP is not supported in shared hosting environments.

Website/Server Content. Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.

Unlimited Disk Space/Bandwidth/Website Plans. This means that we do not set a limit on the amount of bandwidth, websites or disk space you may use in the normal operation of a personal or small business website, provided it complies with this Agreement. However, in the event your service usage or content presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS, or we may take action to restrict the resources your website is utilizing.

Web Hosting:  Customer understands that the newly designed or redesigned web site covered by this agreement will be hosted by WebAfford or one of its affiliates at the launch date of Customer’s web site. Hosting period is for 12 months, if customer chooses to use a different host within 12 months the balance of the hosting contract will be due and payable. If the customer decides to use a different web hosting service, the customer will be responsible for making those arrangements and making sure other web hosting service can support the framework in which the customer web site was developed. WebAfford requires written authorization to be provided by other web hosting service before a read-only access will be granted to customer’s directory. Customer may also request a copy of the site upon discontinuing usage of our services. The cost for site copies are listing in add-on options section of our web site.

THIRD PARTY SOFTWARE

Definition. “Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.

Operating Software.

We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

EXCEPT AS REQUIRED BY LAW, CUSTOMER’S USE OF THE WEBSITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SERVICES ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS,” AND EXCEPT AS EXPRESSLY PROVIDED HEREIN. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) AND/OR EQUIPMENT, WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE, OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT AS REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THAT IS THE CASE, YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK SET OUT IN THIS AGREEMENT ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. OUR PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.

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