Thank you for signing up for a subscription with Shortwave LLC. (“Shortwave”, “we” or “us”). By placing an order, clicking to accept this Agreement, or using or accessing any Shortwave Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a Shortwave Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below, so you should make sure to check this page from time to time. This Agreement includes any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits linked to or referenced herein.
1. OVERVIEW OF THE SHORTWAVE PLATFORM.
Shortwave provides a suite of products that allows subscribers to host, analyze, and dynamically stitch content for a podcast or a number of podcasts. The Service-Specific Terms and the applicable Documentation provide additional details about each Shortwave Service.
2.1 “Add-On” means integrations, applications, and other add-ons that are used with the Shortwave Service.
2.2 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the Shortwave Service.
2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2.6 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the Shortwave Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.
2.7 “Customer Apps” means the applications (such as for mobile device platforms or OTT devices) expressly identified in the applicable Order Form.
2.8 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other Customer Data specified in the Service-Specific Terms.
2.9 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties (as may be supported by Shortwave) specified in the applicable Order Form.
2.10 “Customer Sites” means the web domains expressly identified in the applicable Order Form.
2.11 “Documentation” means the end user technical documentation created by Shortwave and provided with the Shortwave Service, currently available in the Knowledge Base and Developer Docs at help.optimizely.com/.
2.12 “Shortwave Code” means the code developed and provided by Shortwave to Customer for use in connection with the Shortwave Service, which may include Shortwave’s embed code, API(s) and Add-Ons developed and provided by Shortwave.
2.13 “Shortwave Service” means the specific proprietary software-as-a-service product(s) of Shortwave specified in Customer’s Order Form, including any related Shortwave Code and Documentation, and excluding any Third-Party Products.
2.14 “Shortwave Technology” means the Shortwave Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Shortwave Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
2.15 “Order Form” means any Shortwave ordering documentation or online sign-up or subscription flow that references this Agreement.
2.16 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
2.17 “Scope of Use” means the usage limits or other scope of use descriptions for the Shortwave Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.
2.18 “Service-Specific Terms” means the additional or different terms and conditions (if any) specific to a Shortwave Service or other Shortwave products, features, services or subscription plans.
2.19 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Shortwave Service, including Third-Party Content.
2.20 “Subscription Term” means the initial term for the subscription to the applicable Shortwave Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
2.21 “Third-Party Content” means content, data or other materials that Customer provides to the Shortwave Service from its third-party data providers, including through Add-Ons used by Customer.
2.22 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Shortwave.
2.23 “Virus” means a virus, Trojan horse, or worm that is designed to harm, disrupt or interfere with computers, software or hardware and detectable using commercially reasonable procedures.
2.24 “Visitor” means any end user of a Customer Property.
2.25 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Shortwave Service, including any data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Agreement or in the relevant Service-Specific Terms, policies, or Exhibits.
3. ACCOUNT REGISTRATION AND USE.
4. USE RIGHTS.
4.1 Use of Shortwave Services. Subject to all the terms and conditions of this Agreement, Shortwave grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Shortwave Service(s) designated on Customer’s Order Form solely for Customer’s internal business purposes, but only in accordance with this Agreement (including without limitation any applicable Service-Specific Terms), the Documentation, and all applicable Scope of Use descriptions. Where specified in the Service-Specific Terms, the Shortwave Service may require installation of Shortwave Code on Customer Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Shortwave Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed Shortwave Code with Customer Apps.
4.2 Use by Others. Customer may permit its Authorized Users to use the Shortwave Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
4.3 General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Shortwave Service to a third party (except Authorized Users); (ii) incorporate the Shortwave Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the Shortwave Service (which is deemed Shortwave’s Confidential Information); (iv) modify or create a derivative work of the Shortwave Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Shortwave Service (including Shortwave Code), except to the extent expressly permitted by applicable law and then only with advance notice to Shortwave; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Shortwave Service, or configure the Shortwave Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the Shortwave Service other than the Shortwave Code installed in Customer Properties as specifically permitted above; (viii) access the Shortwave Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Shortwave Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Shortwave’s prior written consent; or (x) remove or obscure any proprietary or other notices contained in the Shortwave Service, including in any reports or output obtained from the Shortwave Service.
4.4 Beta Releases and Free Access Subscriptions. Shortwave may provide Customer with a Shortwave Service or Shortwave Code for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Shortwave Services, Shortwave Code, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. Shortwave may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH SHORTWAVE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. Shortwave makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. Shortwave may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in Shortwave’s sole discretion, without liability.
5. CUSTOMER DATA.
5.1 Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any Shortwave Technology). Customer hereby grants Shortwave a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Shortwave Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data). For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the Shortwave Service.
5.2 Aggregate/Anonymous Data. Customer agrees that Shortwave will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Shortwave Technology, which Shortwave may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Shortwave’s products and services and to create and distribute reports and other materials). For clarity, Shortwave will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for Shortwave’s use of Aggregate/Anonymous Data.
5.3 Security. Shortwave agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification. Shortwave’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.
5.4 Storage. Shortwave does not provide an archiving service. During the Subscription Term, Customer acknowledges that Shortwave may delete Content no longer in active use. Shortwave expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.
5.5 Data Export. Shortwave provides the ability for Customer to export data at any time in the Shortwave Service as described in the Documentation.
6. CUSTOMER OBLIGATIONS.
Shortwave makes available web-based support through its website (currently available at help.optimizely.com/). Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form. Any support services are subject to this Agreement and Shortwave’s applicable support policies. Shortwave may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing this Agreement. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Shortwave Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Shortwave Service itself. Shortwave’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. For avoidance of doubt, Customer retains ownership of any Confidential Information it provides to Shortwave.
8. FEES AND PAYMENT.
Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Shortwave’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Shortwave. Customer will make tax payments to Shortwave to the extent amounts are appropriately included in Shortwave’s invoices. Shortwave sends invoices electronically, and invoices for the Shortwave Service in advance as set out in the Order Form, and for overages or additional CPM, if applicable in the relevant Order Form, monthly in arrears. If Customer requires a Purchase Order number referenced on Shortwave’s invoice, Customer must promptly provide the Purchase Order number. If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes Shortwave to charge and fees other amounts automatically to Customer’s credit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
9. TERM AND TERMINATION.
9.1 Term. This Agreement is effective until all Subscription Terms for the Shortwave Service(s) have expired or are terminated as expressly permitted in this Agreement.
9.2 Subscription Term and Renewals. By executing an Order Form for purchase of a Shortwave Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause) or a Service-Specific Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Shortwave Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Shortwave’s then-applicable rates.
9.3 Suspension of Service. Shortwave may suspend Customer’s access to the Shortwave Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits. Shortwave may also suspend Customer’s access to the Shortwave Service(s), remove Customer Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Shortwave Service. Shortwave will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless this Agreement has been terminated, Shortwave will cooperate with Customer to promptly restore access to the Shortwave Service once it verifies that Customer has resolved the condition requiring suspension.
9.4 Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). Shortwave may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of this Agreement.
9.5 Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Shortwave Service(s) (including any related Shortwave Technology); (b) stop distributing any Shortwave Code installed on its Customer Properties; and (c) delete (or, at Shortwave’s request, return) any and all copies of the Shortwave Code, any Shortwave documentation, passwords or access codes, and any other Shortwave Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable Shortwave Service will cease and Shortwave may delete the Customer Data at any time after 30 days from the date of termination. If Shortwave terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Shortwave Technology); 12 (Indemnification); 13.2 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).
10. CONFIDENTIAL INFORMATION.
10.1 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Shortwave, includes the subcontractors referenced in Section 16.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.
10.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
10.3 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
11. SHORTWAVE TECHNOLOGY.
11.1 Ownership and Updates. This is a subscription agreement for access to and use of the Shortwave Service. Customer acknowledges that it is obtaining only a limited right to use the Shortwave Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement. Customer agrees that Shortwave (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Shortwave Technology (which is deemed Shortwave’s Confidential Information) and reserves any licenses not specifically granted in this Agreement. Other than the Shortwave Code, the Shortwave Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Shortwave Service and that Shortwave at its option may make updates, bug fixes, modifications or improvements to the Shortwave Service from time-to-time.
11.2 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Shortwave (collectively, “Feedback”), Customer hereby grants Shortwave a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Shortwave will not identify Customer as the source of the Feedback. Nothing in this Agreement limits Shortwave’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Customer agrees to defend and indemnify Shortwave from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations). Customer must not settle any claim without Shortwave’s prior written consent if the settlement would require Shortwave to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Shortwave may participate in a claim through counsel of its own choosing at its own expense and Customer and Shortwave will reasonably cooperate on the defense.
ALL SHORTWAVE TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER SHORTWAVE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SHORTWAVE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SHORTWAVE TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT SHORTWAVE TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. SHORTWAVE DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. SHORTWAVE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-SHORTWAVE SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON SHORTWAVE TECHNOLOGY OR SHORTWAVE’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
14. LIMITATIONS OF LIABILITY.
14.1 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SHORTWAVE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES. SHORTWAVE’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SHORTWAVE FOR THE APPLICABLE SHORTWAVE SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, SHORTWAVE’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
14.2 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.3 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SHORTWAVE TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.