4.1. General Limitation. Licensee understands and agrees that iHOMEFINDER will not be liable for any indirect, incidental, consequential, punitive, or special damages, arising out of or related to this Agreement including, without limitation, damages for loss of business profits, business interruption, loss of business information, and the like, even if such party has been advised of the possibility of such damages. Neither party shall be liable for any delay or failure to perform which is caused by matters beyond its reasonable control, including without limitation failure or unavailability of, or impaired access to, MLS® System Data Feeds, legal or regulatory restrictions, labor disputes, mechanical, electronic or equipment, breakdowns in facilities controlled by third parties, acts of terror, or Acts of God.
4.2. Exclusions. None of the limitations in Section 4 shall apply in the case of infringement of iHOMEFINDER's, or a Board's, Intellectual Property rights.
4.3. Licensee acknowledges that damages suffered by iHOMEFINDER from unauthorized access to or display of MLS® System content, or violation of Board licenses and rules is speculative and difficult to quantify. Accordingly, as a material inducement to iHOMEFINDER to enter into this Agreement, Licensee agrees that in the event of such violation, regardless of whether intentional or negligent, Licensee shall be liable to iHOMEFINDER for liquidated damages in the amount of $15,000 for each such violation.5. Indemnification. Licensee shall, by entering into this agreement, indemnify and hold iHOMEFINDER, its affiliates, subsidiaries, directors, officers, employees, agents and licensors harmless from and against all claims, demands and actions of or by any third Party, including all liabilities, damages, obligations, costs and expenses (such as reasonable attorneys' and experts' fees) ("Claims"), which arise from or relate to actions including, but not limited to: (i) breach of warranty set forth in this Agreement, (ii) gross negligence or willful misconduct, or (iii) an allegation that the Licensee's use of products, services, content, or materials provided by iHOMEFINDER under this Agreement, as set forth in this Agreement, violates the intellectual property, including but not limited to copyright, trademark, trade secret, patent, or right of personality, publicity, or privacy of any third party. 6. DMCA Compliance. iHOMEFINDER strongly respects copyright protections. Use of iHOMEFINDER services is subject to our Digital Millennium Copyright Act ("DMCA") Notice. Licensee must take adequate precautions to ensure that neither they nor any employee, representative, or other agent upload any copyright-infringing text, photos, or any other matter for which they do not hold the copyright or a copyright license, through the Software and Services. Licensee must indemnify and hold iHOMEFINDER harmless from any damages resulting from copyright infringement arising from Licensee’s use of the Software and Services. 7. Miscellaneous
7.1. Party Representations and Warranties. Each Party to this Agreement hereby represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation and has full power and authority under its organizational documents and the laws of such jurisdiction to execute and deliver this Agreement and to perform its obligations hereunder; and this Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation enforceable in accordance with its terms.
7.3. Fair Usage. In order to preserve the quality of service delivered to all end-users and iHOMEFINDER Licensees, iHOMEFINDER reserves the right to either charge additional usage fees, to modify certain aspects of the Software and Service’s configuration, or to terminate this Agreement, in the event Licensee is determined solely by iHOMEFINDER to have used the provided Software and Service beyond its reasonably intended use.
7.4. Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of Licensee and iHOMEFINDER. It shall not be deemed to be for the direct or indirect benefit of customers of Licensee or iHOMEFINDER products or any other person, and customers of these products shall not be deemed to be third party beneficiaries of this Agreement or to have any other contractual relationship with Licensee or iHOMEFINDER by reason of this Agreement.
7.5. Covenant Not to Sue. Licensee hereby agrees that and covenant that Licensee shall not sue or otherwise assert any claim against iHOMEFINDER based on the Licensee's use of any iHOMEFINDER Product. Other than those claims falling directly and solely within the scope of the foregoing covenant, iHOMEFINDER reserves the right to assert, protect and enforce all of its proprietary rights to the fullest extent permitted by applicable law.
7.6. Dispute Resolution. The Parties hereto agree to submit any unresolved disputes concerning the interpretation of this Agreement to a mediation process to occur within Alameda County, California with each Party to bear its own attorneys' fees and cost of the mediation to be borne equally by both Parties. If mediation is unsuccessful, the parties agree to resolve the dispute through arbitration to occur within Alameda County, California following the rules and practices of the American Arbitration Association.
7.7. Construction. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. The section headings used in this Agreement are intended for convenience only and will not be deemed to affect in any manner the meaning or intent of this Agreement or any provision hereof.
7.8. Independent Contractors. The Parties are independent contractors, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the Parties.
7.9. Attorney's Fees. If any legal action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this agreement, the prevailing Party will be entitled to reasonable attorney’s fees and costs, as well as other out of pocket legal expenses.
7.10. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party.
7.11. Agreement Governed By. This Agreement and performance hereunder and all suits and special proceedings hereunder shall be construed in accordance with the laws of the State of California.
7.12. Waivers. Waiver of one Party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
7.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof, and supersedes any prior or contemporaneous agreements or understandings relating to such subject matter.
7.14 Typographical Errors. iHOMEFINDER is not responsible for any typographical errors in this Agreement.