Hold Harmless Agreement
This Hold Harmless Agreement ("Agreement") shall be effective on the date this form is submitted.
WHEREAS, INGAGE LLC (herein "Provider") Provider has provided, or will provide, to Company (as defined in the Company Name field of this form) a point-of-sale system that provides POS services for the Company's business (the “System”);
WHEREAS, Provider has provided, or will provide software and IT support services to Company, including the ability for Company to input, modify and update tax rates, prices, costs, wages, other variables, and other information into the point-of-sale system provided by Provider (the "Services");
WHEREAS, Company is solely responsible for ensuring that all information inputted into the System is accurate, up to date, and complies with all applicable laws, regulations, and requirements and any changes thereto;
WHEREAS, Company acknowledges that Provider has no control (directly or indirectly) over the information inputted into the System and that Provider is not responsible for any errors or inaccuracies in such inputted information;
WHEREAS, Company agrees to indemnify and hold harmless Provider from any and all claims, damages, liabilities, costs, and expenses arising from any errors or inaccuracies in the information inputted into the System by Company or its agents, employees, or representatives;
and
WHEREAS, Company wishes to enter into this Agreement to set forth their respective rights and obligations.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Company agree as follows:
Indemnification. Company shall indemnify, defend, and hold harmless Provider and its directors, officers, members, employees, agents, affiliates, representatives, successors, and assigns (collectively, the "Indemnitees") from and against any and all claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses) fines, penalties, charges, assessments, judgments, settlements, causes of action and other obligations of any nature whatsoever (collectively “Losses”) that any of them may at any time, directly or indirectly, suffer, sustain, incur or become subject to, arising out of, based upon or resulting from or on account of any claims, demands and/or causes of action which may be asserted in any way related to or arising from or in connection with any errors or inaccuracies in the information inputted into the System by Company or its agents, employees, or representatives.
Duty to Defend. Company shall defend the Indemnitees against any and all such claims, demands, or actions, whether threatened or initiated, at its own expense, and Company shall pay all judgments, settlements, and reasonable expenses, including attorneys' fees and expenses, incurred by the Indemnitees in connection with any such Losses regardless of whether an actual lawsuit or other action is initiated.
Limitation of Liability. Except as otherwise provided herein, Provider's liability to Company for any claims, damages, or losses arising out of or related to the Services, whether in contract, tort, or otherwise, shall be limited to the fees paid by Company to Provider solely for the Services giving rise to the claim during the three (3) month period preceding the event giving rise to the claim. Furthermore, Provider shall not be liable for any errors or inaccuracies in the information inputted into the System by Provider or its agents, employees, or representatives, unless such errors or inaccuracies are caused by Provider's willful misconduct or gross negligence. In the event that Provider makes an error or inputs inaccurate data into the System, the maximum liability of Provider shall be limited to the Company’s direct out-of-pocket costs related to two (2) days of the Services or the value of three (3) months of the Service Agreement by and between the Company and Provider, whichever is lesser.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements, understandings, representations, or warranties between the parties. If there is a discrepancy between this Agreement and Company's Infinity Agreement, the more stringent Agreement shall be enforced.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Minnesota, without regard to its conflicts of laws principles. All judicial actions, suits, or proceedings to construe or enforce this Agreement, and all other actions of any nature whatsoever arising out of this Agreement, shall be brought in the State or Federal Courts of Minnesota.
Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. The delivery of a signed counterpart of this Agreement by facsimile, email or other electronic means shall be treated as the delivery of an originally signed counterpart to this Agreement.
Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Conflict. In the event of any discrepancy, inconsistency, or conflict between the terms and conditions of this Agreement and those of any other agreement(s) executed by the parties, the provisions of the more stringent or restrictive agreement shall prevail and be given effect, unless expressly stated otherwise.
Recitals. The Recitals hereto are incorporated herein by reference.
Modification. This Agreement may not be amended or modified except in writing executed by both parties.
Notice. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be deemed given (a) upon personal delivery, (b) three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (c) one (1) business day after deposit with a nationally recognized overnight courier service or (d) by email to the email address listed below or as otherwise provided to Provider by Company.
Headings. The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
IN WITNESS WHEREOF, the Customer has executed this Agreement as of the Date of signature below.