Common use of DISCLAIMER; LIMITATIONS OF LIABILITY Clause in Contracts

DISCLAIMER; LIMITATIONS OF LIABILITY. (a) EACH ORDERED PRODUCT/SERVICE AND ALL TMG PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, IF ANY, TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, OR ANY THIRD-PARTY PRODUCTS, AND TMG HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES, THE OTHER TMG PROPRIETARY MATERIALS AND ANY THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) TMG DOES NOT PROVIDE ANY WARRANTY AGAINST INFRINGEMENT OR INTERFERENCE WITH ENJOYMENT; (iii) CLIENT ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CLIENT AGREES THAT TMG SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iv) CLIENT ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY ADVERTISING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CLIENT IS NOT ENTITLED TO RELY ON SUCH STATEMENTS IN ADVERTISING OR OTHER DOCUMENTATION. (b) IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CLIENT ACKNOWLEDGES AND AGREES THAT (i) TMG SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TMG SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) TMG'S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR TMG’S OBLIGATIONS UNDER THIS AGREEMENT RELATING THERETO, REGARDLESS OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT, SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CLIENT TO TMG UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. (c) If TMG is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Client Website(s) that constitute Ordered Products/Services hereunder, then TMG shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime.

DISCLAIMER; LIMITATIONS OF LIABILITY. (a) EACH ORDERED PRODUCT/SERVICE AND ALL TMG PROPRIETARY MATERIALS ARE PROVIDED ON AN “EXCEPT AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENTHEREIN SPHERIS AND ITS LICENSORS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, IF ANYINCLUDING WARRANTIES OF MERCHANTABILITY, TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, OR ANY THIRD-PARTY PRODUCTSFITNESS FOR A PARTICULAR USE, AND TMG HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, NONINFRINGEMENT WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES, THE OTHER TMG PROPRIETARY MATERIALS EQUIPMENT AND ANY THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) TMG DOES NOT PROVIDE ANY WARRANTY AGAINST INFRINGEMENT OR INTERFERENCE WITH ENJOYMENT; (iii) CLIENT ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CLIENT AGREES THAT TMG SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iv) CLIENT ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY ADVERTISING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN PROVIDED UNDER THIS AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CLIENT IS NOT ENTITLED TO RELY ON SUCH STATEMENTS . IN ADVERTISING OR OTHER DOCUMENTATION. (b) IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CLIENT ACKNOWLEDGES AND AGREES THAT (i) TMG NO EVENT SHALL NOT EITHER PARTY BE LIABLE TO CLIENT OR ANY THE OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY EXPECTATION, OR OTHER SIMILAR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, EVEN IF SPHERIS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES DAMAGES. SPHERIS’ AND ITS LICENSORS AGGREGATE LIABILITY TO CLIENT AND/OR ANY FACILITY UNDER THIS AGREEMENT AND WITH RESPECT TO SERVICES FURNISHED HEREUNDER (WITHOUT LIMITING THE GENERALITY WHETHER UNDER CONTRACT, TORT OR ANY OTHER THEORY OF THE FOREGOING, TMG LAW OR EQUITY) SHALL NOT BE LIABLE FOR EXCEED, UNDER ANY LOST PROFITS OR REVENUECIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCTONE MILLION DOLLARS ($1,000,000) PER OCCURRENCE/SERVICE OR ANY TMG PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA FIVE MILLION DOLLARS (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); $5,000,000) AGGREGATE INSURANCE COVERAGE. CLIENT AND (ii) TMG'S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR TMG’S FACILITY ACKNOWLEDGE THAT SPHERIS’ OBLIGATIONS UNDER THIS AGREEMENT RELATING THERETO, REGARDLESS ARE FOR THE BENEFIT OF CLIENT AND ITS FACILITIES ONLY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT, SHALL NOT EXCEED (IN BASIS OF THE AGGREGATE) BARGAIN BETWEEN THE TOTAL FEES PAID BY CLIENT TO TMG UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMSPARTIES. (c) If TMG is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Client Website(s) that constitute Ordered Products/Services hereunder, then TMG shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime.

DISCLAIMER; LIMITATIONS OF LIABILITY. (a) EACH ORDERED PRODUCT/SERVICE AND ALL TMG PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, IF ANY, TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, OR ANY THIRD-PARTY PRODUCTS, AND TMG HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES, THE OTHER TMG PROPRIETARY MATERIALS AND ANY THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR- ERROR-FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) TMG DOES NOT PROVIDE ANY WARRANTY AGAINST INFRINGEMENT OR INTERFERENCE WITH ENJOYMENT; (iii) CLIENT ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CLIENT AGREES THAT TMG SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iv) CLIENT ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY ADVERTISING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CLIENT IS NOT ENTITLED TO RELY ON SUCH STATEMENTS IN ADVERTISING OR OTHER DOCUMENTATION. (b) IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CLIENT ACKNOWLEDGES AND AGREES THAT (i) TMG SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TMG SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) TMG'S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR TMG’S OBLIGATIONS UNDER THIS AGREEMENT RELATING THERETO, REGARDLESS OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT, SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CLIENT TO TMG UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. (c) If TMG is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Client Website(s) that constitute Ordered Products/Services hereunder, then TMG shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime.

DISCLAIMER; LIMITATIONS OF LIABILITY. (a) EACH ORDERED PRODUCT/SERVICE AND ALL TMG PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, IF ANY, TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, OR ANY THIRD-PARTY PRODUCTS, AND TMG HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES, THE OTHER TMG PROPRIETARY MATERIALS AND ANY THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) TMG DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR- ERROR-FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) TMG DOES NOT PROVIDE ANY WARRANTY AGAINST INFRINGEMENT OR INTERFERENCE WITH ENJOYMENT; (iii) CLIENT ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CLIENT AGREES THAT TMG SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iv) CLIENT ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY ADVERTISING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CLIENT IS NOT ENTITLED TO RELY ON SUCH STATEMENTS IN ADVERTISING OR OTHER DOCUMENTATION. (b) IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CLIENT ACKNOWLEDGES AND AGREES THAT (i) TMG SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TMG SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY TMG PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) TMG'S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR TMG’S OBLIGATIONS UNDER THIS AGREEMENT RELATING THERETO, REGARDLESS OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT, SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CLIENT TO TMG UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. (c) If TMG is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Client Website(s) that constitute Ordered Products/Services hereunder, then TMG shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime.