DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY; USER AGREEMENT.
A. CUSTOMER EXPRESSLY AGREES THAT USE OF PRAGMETA NETWORKS’ WIRELESS SOLUTIONS (THE SERVICE), INCLUDING, BUT NOT LIMITED TO, PRAGMETA WIRELESS BROADBAND, PRAGMETA NETWORKS’ WIRELESS SOLUTIONS, AND THE FEATURES OF EACH, IS AT ITS SOLE RISK AND THAT NEITHER PRAGMETA NETWORK CONSULTING, LLC (PRAGMETA) NOR ITS AFFILIATES SHALL BE LIABLE IN CONNECTION WITH ANY USAGE OF THE SERVICE PACKAGE BY CUSTOMER OR ANY THIRD PARTY. NONE OF THE PRAGMETA PARTIES REPRESENT OR WARRANT THAT THE SERVICE PACKAGE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY REPRESENTATION OR WARRANTY AS TO THE AVAILABILITY OR SCOPE OF THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, AVAILABILITY OF THE CUSTOMER NETWORK LINK OR THE WEB SITE, OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE PACKAGE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE OR MERCHANDISE ADVERTISED, PURCHASED OR PROVIDED THROUGH THE SERVICE PACKAGE. CUSTOMER ACKNOWLEDGES THAT THE PERFORMANCE OF THE SERVICE PACKAGE WILL VARY FROM TIME TO TIME BASED ON NETWORK USAGE AND OTHER FACTORS, AND THAT NO MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. NEITHER PRAGMETA NOR ITS AFFILIATES SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE CUSTOMER DATA NETWORK, CUSTOMER REMOTE NETWORKS, COMPUTERS, THE WEB SITE, E-MAIL MESSAGES, DATA FILES, PROGRAMS OR ANY OTHER INFORMATION OF THE CUSTOMER, ITS USERS, OR OTHER THIRD PARTIES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES.
NEITHER PRAGMETA NOR ITS AFFILIATES ENDORSE OR WARRANT, AND NEITHER SHALL BE RESPONSIBLE IN ANY REGARD FOR, ANY MERCHANDISE OR SERVICES ADVERTISED BY OR ORDERED THROUGH THE SERVICE PACKAGE FROM THIRD PARTIES OR OTHER COMMERCIAL TRANSACTIONS WITH THIRD PARTIES. RESELLING OF THE SERVICE IN WHOLE OR IN PART IS STRICTLY PROHIBITED. PRAGMETA SHALL NOT BE RESPONSIBLE FOR ANY CRIMINAL ACTIVITY THE CUSTOMER OR ANY THIRD PARTY COMMITS USING THE SERVICE, INCLUDING, BUT IS NOT LIMITED TO FRAUD, OBSCENE CONTENT, COMPUTER OR SYSTEM SABOTAGE, AND ALL OTHER USES THAT LOCAL LAWS AND REGULATIONS DEAM ILLEGAL. PRAGMETA RETAINS OWNERSHIP OF ALL INSTALLED DEVICES AND HARDWARE ASSOCIATED WITH THE SERVICE. THE DEVICES MAY NOT BE REMOVED OR RESOLD WITHOUT SPECIFIC AND WRITTEN CONSENT FROM PRAGMETA. ANY ATTEMPT TO CIRCUMVENT PRAGMETA’S SECURITY SHALL BE PROHIBITED. PRAGMETA SHALL RETAIN THAT THE SERVICE MAY BE DISCONTINUED AT ANY TIME, WITH OR WITHOUT FORMAL NOTICE. PRAGMETA IS NOT, AND SHALL NOT BE, HELD REPONSIBLE FOR CUSTOMER NEGLEGENCE OR ACTS OF NATURE CAUSING HARDWARE DAMAGE OR FAILURE.
THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT ALL USE OF THE PRAGMETA NETWORKS’ WIRELESS SOLUTIONS SERVICE (INCLUDING BUT NOT LIMITED TO THE ACCESSING AND USE OF CONTENT, INFORMATION AND SERVICES, THE EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO CUSTOMER AND THE DOWNLOADING OF COMPUTER FILES) IS AT CUSTOMER'S SOLE RISK.
B. CUSTOMER UNDERSTANDS THAT THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE PRAGMETA NETWORKS’ WIRELESS SOLUTIONS SERVICE, EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO CUSTOMER'S COMPUTER(S) OR OTHER HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NONE OF PRAGMETA PARTIES SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, HARDWARE, DATA OR FILES. ANY PRAGMETA PARTY OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE PACKAGE (INCLUDING THE CONTENT INCLUDED THEREIN OR THE INFORMATION SERVICES ACCESSED THEREBY), THE EQUIPMENT OR THE SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE PRAGMETA NETWORKS’ WIRELESS SOLUTIONS SERVICE, ACTION TAKEN TO PROTECT THE PRAGMETA SERVICE OR THE BREACH OF ANY WARRANTY OR REPRESENTATION, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE. [BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER].
IN ANY EVENT, THE AGGREGATE LIABILITY OF PRAGMETA AND ITS AFFILIATES TO CUSTOMER FOR ANY REASON AND UPON ALL CAUSES OF ACTION IN THE AGGREGATE RAISED UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEEDING THE DATE THE CLAIM ARISES. CUSTOMER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT OR INFORMATION SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICE PACKAGE, AND ARE FOR THE BENEFIT OF PRAGMETA AND ITS AFFILIATES.
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