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Annex H: Limitations of Liability and Indemnification
Indemnification
ArtsPool Services’ contractual relationship is solely with Member and is governed by the TOS. No other third party (other than Member) shall have the right to bring claims against ArtsPool Services related to the Services. Accordingly, Member will indemnify and hold harmless each ArtsPool Responsible Person from Losses from Third Party Claims (as defined in Annex N) arising out of or related to the performance of the Services.
ArtsPool Services’ liability to a Member is described below under Limitation of Liability.
Limitation of Liability
As a Member-owned and managed organization that operates without a profit, ArtsPool Services does not have retained profits to support indemnification payments for Member claims other than via its insurance. Moreover, ArtsPool Services cannot realistically pass on these types of costs to its other members without risking the viability of its business. Accordingly, as is the case with most financial service providers, ArtsPool Services’ liability is strictly limited. Your acceptance of these terms is a material condition to ArtsPool Services’ willingness to provide the Services.
No ArtsPool Responsible Person will be liable for a Member’s Losses, except to the extent it is finally determined via the Dispute Resolution process to have resulted from an ArtsPool Responsible Person’s gross negligence or willful failure to provide any required Service.
In the event of a claim, you must follow the Dispute Resolution procedures set forth in Annex I. In almost all cases, the claim will be remedied through the re-performance of any defective Service or the refund or payment of any applicable penalty, as determined in good faith by ArtsPool Services. If Member is not satisfied with the resolution of its problem, Member may terminate the Services, in which case ArtsPool Services will assist in the transition of Services to another service provider or to Member staff according to the Offboarding Procedure in Annex L.
In the rare case in which monetary damages could be awarded, Member may be able to recover in part from the ArtsPool Insurance (as defined in Insurance below). However, please be aware that in no case would such damages include compensation for the following:
- Punitive damages;
- Special or incidental damages;
- Consequential damages constituting lost profits, lost donations, or re-performance of the service by another service provider;
- Losses related to a Member’s failure to maintain tax-exempt status or failure to comply with the terms of any Member contract or grant;
- Losses for business interruption; or
- Losses due to failure in performance due to a Force Majeure Event (as defined in Annex N).
Force Majeure
A party will not be deemed to be in breach or default of its obligations or liable to the other party during the continuance of a Force Majeure Event which rendered such party unable to perform its obligations to the other party as may be reasonably necessary for the resumption of the performance of such obligations. This clause shall not excuse the payment by Member of Service fees, except for so long as ArtsPool Services is unable to provide the Services.
Procedures related to Third Party Claims
ArtsPool Services must notify Member in writing and in reasonable detail of any Third Party Claim within 20 calendar days after receipt by ArtsPool Services of written notice of the Third Party Claim; provided, however, that failure to give such notice will not affect the indemnification except to the extent Member was actually and materially prejudiced as a result of such failure to timely notify.
Member will be entitled to participate in the defense of the claim and to assume the defense of the claim with counsel selected by Member and reasonably satisfactory to ArtsPool Services. If Member assumes such defense, Member will not be liable to an ArtsPool Responsible Person for legal or other expenses subsequently incurred by an ArtsPool Responsible Person in connection with the defense of such claim.
ArtsPool Services shall have the right to participate in the defense thereof and to employ counsel or other advisors, at its own expense, separate from the counsel or other advisors employed by Member; provided that Member will be liable for ArtsPool Services’ defense costs in the event Member does not take actions to reasonably defend ArtsPool from such claim.
Member and ArtsPool Services will reasonably cooperate in the defense of any Third Party Claim. Such cooperation shall include the provision by ArtsPool Services to Member of records and information which are reasonably relevant to such claim, and making employees available on a mutually convenient basis to provide additional information and explanation. Member shall keep ArtsPool reasonably informed of all significant developments in connection with the defense or prosecution of such claim.
Member shall not admit any liability or settle any Third Party Claim without the prior written consent of ArtsPool Services, which consent shall not be unreasonably withheld or delayed.
Insurance
ArtsPool Services will, at its own expense, secure and maintain during the performance of Services the following insurance (the “ArtsPool Insurance”) with companies rated A-VII or better in the current Best’s Insurance Reports published by A. M. Best Company.
