10.2 By Customer. Customer will defend, or at its option, settle any claim brought against Company or its affiliates or their employees or agents: (i) alleging that the use by or on behalf of Company of the Customer Data or Customer Content infringes or misappropriates any third party’s rights or violates any laws; (ii) arising out of any alleged breach by Customer or any Authorized User of this Agreement; or (iii) arising from Customer or any Authorized User’s violation of any applicable laws. Customer will pay all damages finally awarded against Company (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Company agrees to provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Company may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to Customer.
11. DISCLAIMER; LIMITATION OF LIABILITY
11.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, USE, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY COMPANY THROUGH THE SERVICE WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES. COMPANY SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY COMPONENTS, PRODUCTS, OR SERVICES PROVIDED WITH THE COMPANY SERVICES AND FOR THE AVAILABILITY OR CUSTOMER’S USE OF ANY DATA OR INFORMATION STORED ON THE SERVICE.
11.2 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS AND A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY IN CONTRACT OR TORT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
12. GENERAL PROVISIONS
12.1 Force Majeure; Delays. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, epidemic, pandemic, or failure or degradation of the Internet. Company is not responsible for liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform any of its obligations under the Agreement.
12.2 Publicity. Company may use Customer’s name as a reference for marketing or promotional purposes on Company’s website and in other communication with existing or potential Company customers, subject to any written trademark policies Customer may provide Company in writing, with reasonable advanced notice.
12.3 Export Controls. Customer agrees to comply with all applicable export control laws and regulations related to its use of Company IP.
12.4 Notices. Any notices required or permitted under this Agreement must be submitted to (i) the mailing address or email address on file with Company, in the case of Customer or (ii) email@example.com in the case of Company. Each notice will be deemed delivered on the date the sender can reliably confirm the notice was sent.
12.5 Arbitration. The parties will resolve all disputes arising under or in connection with this Agreement through confidential binding arbitration. A party intending to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in San Mateo County, California, USA by one arbitrator selected in accordance with the applicable rules of the AAA for. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. This Section 12.5 will not prohibit either party from: (a) bringing an individual action in small claims court; (b) seeking injunctive relief in a court of competent jurisdiction; (c) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available, or (d) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 12.5 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 12.6 will govern any action arising out of or related to this Agreement.