INDEMNITY You will indemnify and hold harmless Digital Overcast, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damage or cost (including reasonable attorneys. fees and cost) from (i) any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, violation of the Terms of Use by you, or the infringement by you, or any third party.
WARRANTY DISCLAIMERS You acknowledge that Digital Overcast has no control over, and no duty to take any action regarding: which users gain access to the Site or use the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Digital Overcast from all liability for you having acquired or not acquired Content through the Site or the Services. The Site or Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Digital Overcast makes no representations concerning any content contained in or accessed through the Site or Services, and Digital Overcast will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Services. THE SERVICE, CONTENT, AND SITE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LINKS The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Digital Overcast has no control over such sites and resources, you acknowledge and agree that Digital Overcast is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Digital Overcast shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
LIMITATION OF LIABILITY IN NO EVENT SHALL Digital Overcast OR ITS SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (I) WITH RESPECT TO THE SITE, THE SERVICE OR ANY CONTENT FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $0.01. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
MISCELLANEOUS No agency, partnership, joint venture, or employment is created as a result of the Terms of Use and you do not have any authority of any kind to bind Digital Overcast in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Digital Overcast shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Digital Overcast's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of the Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Use shall otherwise remain in full force and effect and enforceable. The Terms of Use is not assignable, transferable or sublicensable by you except with Digital Overcast's prior written consent. Digital Overcast may transfer, assign or delegate the Terms of Use and its rights and obligations without consent. The Terms of Use shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction of the Superior Court of San Francisco County and the United States District Court for the Northern District of California. Notwithstanding the foregoing sentence, (but without limiting Digital Overcast's right to seek injunctive or other equitable relief in any court of competent jurisdiction), any disputes arising with respect to this Agreement shall be referred to an arbitrator affiliated with JAMS, The Resolution Experts. The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on and heard in San Francisco, California using the English language and pursuant to the rules of JAMS. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys' fees. Both parties agree that the Terms of Use is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms of Use, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
TRADEMARKS Digital Overcast and other Digital Overcast graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Digital Overcast in the U.S. and/or other countries. Digital Overcast's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.